Lawyers for Black Lives Matter Protestor Seek to Hold NYPD in Contempt for Stonewalling Release of Surveillance Video

Months after a court ordered the NYPD to turn over records of its surveillance of Black Lives Matter protesters, the lawyers seeking those records say the police and the New York City Law Department lawyers representing them still haven’t complied with the court order — and may have lied in court. In a motion filed this afternoon, attorneys have asked the judge who heard the case to hold the police and the city in contempt and to levy monetary sanctions against them.

The case began when James Logue, a New Yorker taking part in a Black Lives Matter protest in Grand Central Station in November 2014, noticed that the demonstration was being recorded by plainclothes police officers. Logue believed that action violated the restrictions on when the NYPD is allowed to conduct surveillance on citizens’ political activity, and in January 2015 he filed a request with the NYPD under New York’s Freedom of Information Law to determine just how much surveillance was going on.

The NYPD has been widely criticized as a particularly egregious offender when it comes to violating state laws on transparent government. “The NYPD has been in so many ways hostile to Freedom of Information Law,” Bob Freeman, executive director of the state’s Committee on Open Government, tells the Voice. In 2011, the New York Times sued the department, saying it had “routinely violated” the law. Two years later, Mayor Bill de Blasio, then Public Advocate, gave the department an “F” for transparency.  Earlier this year, the mother of Ramarley Graham announced she was suing the NYPD after it refused to give her documents she’d requested that might shed some light on how her son was killed by police in the Bronx five years ago. And it took a lawsuit, settled last month, just to get the department to accept Freedom of Information requests by email, even though the law has required it to do so for a full decade.

After the NYPD rejected Logue’s FOIL request and his appeal, in May of last year he sued the department in what’s known as an Article 78 hearing, alleging the NYPD was illegally stonewalling his request for information. The Law Department strenuously argued in response that to turn over information about how the NYPD was spying on protesters would make New Yorkers less safe, exposing them to terrorist attacks. But this February, Justice Manuel Mendez ruled that the city lawyers’ arguments were inadequate, ordering the NYPD to turn over its surveillance records within thirty days.

But that’s not what happened. After the ruling, the NYPD did turn over some surveillance material that showed, among other things, that undercover officers had posed as Black Lives Matter protesters and gained access to text loops used by organizers to coordinate demonstrations. The department also turned over redacted emails between undercover officers and their handlers, plus a handful of still photographs of demonstrators and a single video shot with a handheld camera.

But as they examined the material that the NYPD had turned over, Logue’s lawyers, David Thompson and M.J. Williams, came to the conclusion that the NYPD still hadn’t turned over all its material, even after being ordered to by a court of law. For one thing, though Justice Mendez had indicated that the department could redact only “identifying information…of the NYPD undercover officers, their handlers, and the base” in emails, the records turned over by the NYPD also redacted useful information like the dates and times the emails were sent.

Thompson and Williams also noticed the lack of still and video images from any stationary surveillance cameras — which is odd, since the city had an explicit argument against turning over this kind of material, implying it did exist. During the case, the city had argued that it couldn’t turn over such footage because it might indicate to terrorists weaknesses in the NYPD’s protections. In a sworn affidavit submitted in the case, Assistant Chief John Donohue, executive officer of the NYPD’s Intelligence Bureau, testified that turning over camera evidence could “reveal the kinds of optical technology NYPD uses, both in its undercover and general surveillance operations. Additionally, these records would show not only which areas were under surveillance, but also the inverse: specifically, any areas NYPD does not have under surveillance, thereby exposing gaps in coverage.”

“He said disclosure would reveal the blind spots in the [surveillance] network,” Thompson explains. “Then when they turn over the material, we get one video. From a handheld camera!” For Thompson, that means one of two things had to be true: “Either what Chief Donohue said wasn’t just bullshit, it was perjury; or they are withholding video, and they’re in contempt of the court order.”

Over the last few weeks, Thompson said as much in letters to the Law Department, urging it to turn over any remaining videos. But the NYPD has refused to budge. Thompson warned the Law Department that his next step would be to seek contempt charges for the NYPD’s failure to comply with the court order, as well as sanctions against the NYPD and the Law Department for misrepresenting the nature of the evidence in court.

Last Monday, the Law Department wrote an extremely unusual letter to Justice Mendez, saying that even to adequately explain its position on whether it had fully complied with the court order “would require NYPD to reveal or explain non-routine law enforcement techniques, and also would implicate issues of public safety and security…. Although NYPD is confident it can explain why Petitioner’s objections and concerns regarding NYPD’s production are without merit, the nature of NYPD’s response constrains it from explaining its position except privately to Your Honor.” The Law Department then requested a private meeting with Justice Mendez without the plaintiffs present.

There were any number of problems with this request, Thompson and Williams argued in their own letter to the judge:

Seen in the very best light possible, Respondents’ request seeks to convene an unheard-of ex parte proceeding to provide the Court with previously withheld information that they now claim the Court actually needed to properly adjudicate this matter. Or, alternatively, Respondents are seeking to argue the old facts anew, this time without the hindrance of a counterparty to answer those arguments. In either scenario, this is an extraordinary request signaling a radical demand to upend both law of the case and basic American procedural guarantees. To exclude Petitioner from an unprecedented proceeding to modify the Judgment and Order would not only be unlawful, but would additionally reward Respondents for their continual falsehoods and their non-compliance with law that has been, throughout both the administrative FOIL process and the litigation that followed, uniquely remarkable and shameful.

Asked about the city’s request for a private meeting with the judge, Thompson is even more blunt. “It’s insane,” he says. “We have not yet gotten to the stage in this country where we have trials with only one party present. Remember, this case is about FOIL, the sunshine law that exists for the purpose of granting greater access to what’s happening inside government to the people so they can have better control over their government. So to seek to upend court procedure, the constitution, not to mention one thousand years of English common law, in this context, where we’re talking about the sunshine law — that’s chutzpah!”

If the NYPD has top secret arguments why it can’t comply with the FOIL request, it should have presented them at trial, Thompson says, or appealed the judge’s ruling to a higher court. It did neither.

“This isn’t us saying, ‘Nyah-nyah, you missed your chance,’ ” he says. “There’s a principle involved: The only reasons we have all this surveillance, supposedly, is to protect the American way, which is truth and justice, not lies and kangaroo courts and the government does whatever it wants.”

Freeman, director of the state agency tasked with overseeing government transparency and adherence to the Freedom of Information Law, says he also finds the city’s behavior concerning. “If we refuse to abide by orders issued by judges, and we fail to appeal, it seems to me we’re inviting chaos,” he says. “The Freedom of Information Law requires government agencies to demonstrate how and why disclosure would somehow be damaging. It seems the NYPD was unable to do so before the judge. So do we just ignore court orders in this country? I hope not. This is supposed to be a nation of laws, where we rely on the judicial branch to make these determinations.”

The NYPD did not respond to requests for comment.

The Law Department disputes the suggestion that the NYPD has failed to turn over all the material it is required to. “We take no issue with and are in compliance with the court’s order,” Nick Paolucci, director of public affairs and press secretary for the department, tells the Voice. “As we mention in our letter to the court, there are exceptional circumstances which warrant an ex parte in camera conference with the judge.” (Paolucci did not respond to follow-up questions.)

The NYPD’s lawyers now have until September 30 to respond to the motion for contempt and sanctions filed today.

You can read the full Memorandum of Law from Logue’s lawyers arguing for sanctions and a contempt finding against the city here.


Manhattan D.A. Gives Turnstile Jumpers a Choice: Enroll in a Program or Face Prosecution

Manhattan District Attorney Cyrus Vance Jr. announced last week that beginning in September, his office will no longer prosecute most people arrested for theft of services, the class A misdemeanor attached to jumping subway turnstiles. It’s a policy shift that could have significant implications for Manhattan’s criminal courts, where theft of services is the single most prosecuted charge, accounting for nearly 10,000 cases last year alone.

Under the new policy, Vance’s office will encourage police to issue summonses and desk appearance tickets to people who don’t pay the subway fare. Those who the police do arrest will be given a choice: They can face prosecution, or they can take part in a diversion program.

The announcement was greeted enthusiastically in the press and some quarters of the criminal justice reform community. City Councilmember Rory Lancman, a dogged critic of much of New York’s criminal justice policy, praised Vance’s move as a “smart and sensible policy.” Tina Luongo, attorney in charge of the criminal practice at the Legal Aid Society, released a statement urging New York City’s other district attorneys to follow Vance’s lead. Acting Brooklyn D.A. Eric Gonzalez announced that his office would soon be doing just that.

But not everyone is convinced that the Manhattan D.A.’s initiative is really the best he can do.

“D.A. Vance’s move is indicative of a growing awareness that we can’t arrest and prosecute our way out of all our social problems,” said Alex Vitale, a Brooklyn College professor who studies criminal justice. “But by relying on diversion and other forms of supervision, they’re holding on to the idea that there’s something wrong with people who do things like jump the turnstile, when the problem is that public transit can’t be afforded by large swaths of the public anymore.”

Of course, as district attorney, Vance isn’t in a position to roll back the decades of underfunding that drove the MTA to borrow so much money that nearly a fifth of its revenue now goes to servicing its debt and ongoing fare hikes are projected out to the horizon. That very real problem is outside of his control.

Using money from its settlements with banks that violated U.S. sanctions, the D.A.’s office is funding three diversion programs.

One program, run by the Center for Court Innovation, will cater to young adults and adults from midtown Manhattan and adults from Lower Manhattan, and will offer workshops on “topics such as public health, legal resources, community service, education, and workforce,” as well as counseling and a restorative justice program, according to the district attorney’s office.

Another program, run by the Osborne Association, will focus on residents of northern Manhattan, who will be offered “one of four core interventions: a trauma-coping intervention, a restorative justice intervention, a Naloxone treatment training program, and community benefit projects.”

The third program, run by Young New Yorkers, will serve young adults in Lower Manhattan and will be composed of “an arts-based restorative justice intervention that engages participants in taking responsibility for their actions through storytelling, utilizing video, photography, and collage.”

But the decision to subject New Yorkers whose crime is riding a subway they’re too poor to afford to diversion programs might still have adverse consequences.

“We’ve been here before,” says Jeffrey Fagan, a professor at Columbia Law School who focuses on criminal justice issues, and who notes that diversion programs are already a feature of specialized courts for drug offenders and sex workers. “The bargain with diversion programs is, ‘Get in this programmatic setting and comply with this set of rules, and we won’t prosecute you.’ That’s fine, but it could be the case that the terms of these diversion programs are actually more onerous than copping a plea, having a judge tell you not to get arrested again for six months, and walking out the door. So the question about diversion is, diversion compared to what?”

If the requirements of the diversion programs are too onerous, some participants will fail to meet them, Fagan said. “What happens then? If they don’t comply with it, then they’re back in court. And the judge may say, ‘Hey, you had your chance and you screwed up, so now you’re going to have to face the music.’ They can end up worse off than if they had just taken the plea and been let go with a warning to stay out of trouble.”

There’s also the question of whether the diversion programs are intended to punish fare beaters, educate them about the consequences of their crime, provide them services to address underlying conditions that led to their behavior, or some combination of the three. Not all people riding the subway for free require treatment for drug addiction or coping with trauma. “There’s a danger with diversion programs that it can become a matter of hammers and nails — they have a hammer and they see everything as a nail,” Fagan said.

Nor is he convinced that a restorative justice process — in which wrongdoers reconcile with their victims and confront the consequences of their actions — is necessarily a good fit for fare beaters. “I’m not sure that someone who’s in desperate straits and hops a turnstile needs a restorative justice program to tell them they’ve torn up the social contract. That might be overkill,” Fagan said.

How the Manhattan district attorney’s office and its contractors will navigate these complicated issues remains to be seen. The D.A.’s office declined to comment on the record about its new initiative beyond its public announcement. The diversion programs will still be under development for months before the first turnstile jumpers enter them.

But Vitale wonders if Vance isn’t missing a much simpler solution: “Instead of trying to divert people into a program, he could just refuse to prosecute them, period.”


NYPD Promises to Finally Follow Freedom of Information Law

The NYPD has entered into a stipulation and judicial order that commits the department to complying with requirements of New York’s Freedom of Information Law that it has systematically flouted for more than a decade.

Since 2006, state FOIL law has required government agencies to “accept requests for records submitted in the form of electronic mail and [to] respond to such requests by electronic mail,” if requested to do so; to provide responsive records when it’s reasonably able; and to publish on their websites an email address to which records requests can be sent. For more than a decade, the NYPD has operated in violation of each of these provisions of state law. But in settling a lawsuit brought by Keegan Stephan, a law student and activist, the NYPD has committed itself to finally bringing itself into compliance.

Stephan’s lawsuit stems from a Freedom of Information request he made to the NYPD about its use of Long Range Acoustic Devices, or LRADS, which police deployed as a crowd-control weapon against Black Lives Matter protesters in 2014. Stephan (who is also party to a federal civil rights lawsuit against the NYPD by protesters who were subjected to the LRAD) filed a records request seeking what policies, guidelines, and training materials the department has governing the use of these powerful devices. Throughout the long chain of FOIL requests, denials, and administrative appeals, the NYPD refused to receive FOIL communications by email or to respond by email, as Stephan had requested and as the law requires.

For those who concern themselves with government transparency, the NYPD’s intransigence is hardly surprising. The department has a long history of cultivating opacity and violating state open records law.

“The NYPD has been in so many ways hostile to freedom of information law,” said Bob Freeman, who helped draft New York’s sunlight laws, which went into effect in 1974, and has served as executive director of the state’s Committee on Open Government in the decades since. “It’s unfortunate that a government agency has simply ignored a provision of law that has been in effect for more than a decade — and that goes double for a law enforcement agency! It should never have taken a lawsuit to encourage the government to conform with the law.”

If Freeman sounds a little heated on the subject, it’s because he is. “I get angry when a government agency, for no good reason, chooses to ignore the law,” he said. “In my opinion, when that occurs, people lose respect for the government.”

For his part, Stephan said he is pleased with the outcome of his FOIL lawsuit. “The Freedom of Information Law is a tool for the public to make our police transparent and accountable,” he said. “It’s an imperfect tool for a lot of reasons, but the more we can hold them accountable, the better it is for everyone. This case is proof of that.”

Gideon Oliver, who with Elena Cohen represented Stephan in his FOIL lawsuit, said the stipulation will contribute to police accountability. “We need the department to follow FOIL so we can follow what the police are doing,” he said. “New Yorkers and their City Council and others need basic information if there is going to be any kind of oversight over the police department.”

The NYPD did not respond to a request for comment.

Image via Huseyin/Flickr



Three Months After Cyclist Kelly Hurley’s Death, Police Arrest the Driver Who Killed Her

Police have arrested the driver who ran over and killed cyclist Kelly Hurley on First Avenue nearly three months ago, according to the NYPD.

The driver, Kyung Hyun, 59, of Syosset, was charged with failure to exercise due care, improper left turn, and failure to yield to a bicyclist. He was issued a Desk Appearance Ticket and will be arraigned in Manhattan Criminal Court on August 29.

Kelly Hurley
Kelly Hurley

Hyun, who was driving a truck bearing his name when he reportedly crossed multiple lanes of traffic and ignored Hurley’s right of way on First Avenue to make a left turn onto 9th Street, told the Daily News at the time that he didn’t see Hurley.

“I didn’t see the bike lady,” he told the paper. “I didn’t see her. I told the highway patrol everything. I stayed here.”

In the meantime, two more cyclists have been killed just this month, both by commercial bus drivers and both in Chelsea. One of those killed, Dan Hanegby, was the first person killed while riding a Citi Bike. Police sources initially described Hanegby as swerving into the path of the bus, but video evidence and eyewitness testimony reported by Gothamist contradicted that account, suggesting Hanegby did not swerve before being hit by the bus.

The Manhattan district attorney’s office said those two bicyclist fatalities are under investigation.

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Naomi Klein: Don’t Get Distracted by the Trump Show’s ‘Rolling Shock’

Naomi Klein has a lot of experience mapping the tensions between capitalism and popular democracy, from her 1999 book No Logo to 2007’s The Shock Doctrine to her current work as senior correspondent for the Intercept. In her latest book, No Is Not Enough: Resisting Trump’s Shock Politics and Winning the World We Need, Klein asks how we came to find ourselves living in the Age of Trump, how bad things could get, and what we can do about it.

The Voice sat down with Klein in Bryant Park last week to discuss her new book and the current political moment. What follows is part of that conversation, condensed and edited for clarity.

In the last year people have talked about which artist or thinker may have “predicted Trump.” But reading your book — as you revisit your work from ten years ago on the tactic of using disorienting “shocks” to stun the populace while corporations jam through unpopular and retrogressive “reforms” — it seems like you have a pretty good claim yourself.

A few people have described this book as an “I told you so,” but it’s really not; I was wrong when I wrote The Shock Doctrine in that I actually thought that saying no was enough. I thought that, if you understood that shock tactic and organized against it, you could stop it. But the 2008 financial crisis was eye-opening for me, because people really did say no — they really did know what was happening.

And it wasn’t enough.

It wasn’t enough in Greece; it wasn’t enough in Italy; it wasn’t enough here. So I thought it was important to share that lesson in this moment, that we have to have more than the “no,” we need to be building what we do want.

But I also wanted to put Trump in context, because the thing about shocking moments is they cause people to doubt what they already know. There’s something inherently dangerous in this idea that “we’ve never seen anything like this before.” You think about the 9/11 moment and this idea of “pre-9/11 thinking” — the idea that everything you thought you knew no longer applies. And that’s when people are at their weakest. We’re all strongest when we have some context in which to put what’s happening.

You talk in The Shock Doctrine about the evolution of shock tactics as first an opportunistic thing, in which advocates of neoliberal reform are waiting for a shocking event to occur so they can ram through their agenda, and then how the tactic evolved in some instances to actually precipitating a shock in order to capitalize on it. And now we’ve got Trump, who is the shock made flesh.

A rolling shock.

So is that just a difference of degree or a difference in kind? What does it mean for how we react when the shock is the president?

Trump has always understood the value of distraction, since the Eighties, when he turned this city into a tableau for his live-action soap opera and called it The Trump Show. Now the whole world’s watching The Trump Show. But the rolling shock of the chaos and spectacle, the series of gasps that the last six months have been have created this context in which it is possible to advance an extraordinarily radical economic agenda and have it barely register as a footnote. I don’t think that the Republicans had any idea how good Trump was going to be for them. They were panicked at first, but this has turned out to be a whole new model for getting what they want.

The scary thing is that Trump’s own rolling shock isn’t going to be the end of the story. There will be external shocks that these guys will try to exploit, because their policies are going to produce them. The Muslim travel ban, which is intensely provocative, ending Dodd-Frank regulations, gutting environmental regulations — these are all things that tend to produce crises. We have to be ready for how they’re going to try to exploit those crises when they come.

How can the media avoid allowing itself to be used in the ways Trump uses it?

Maybe everybody needs to introduce a daily feature called “While We Weren’t Watching.” I’ve been struck by this narrative that Trump is completely incompetent, totally incapable of executing any kind of strategy. [Commerce Secretary] Wilbur Ross recently told a business audience that they were going to renegotiate NAFTA to make it more like the TPP ­— which is to say, worse for workers and better for businesses. That received no coverage!

This is why it’s reckless and unstrategic for Trump’s opponents to go all in on the Russia scandal. It certainly needs to be investigated, but the Republicans are not going to impeach Trump until he is no longer useful to them. The only thing that would make him less useful to them is if substantial portions of his base turned on him. And the only thing that is going to make that happen is a relentless focus on his economic betrayals — connecting the dots between what he’s doing on health care, social security, bank regulation, tax policy, infrastructure. The whole thing is this massive corporate giveaway, and we need to be hammering away at it at least as enthusiastically as they’re hammering away at the Russia connection.

In your book you talk about Trump as being like dystopian fiction, in the sense that he holds a mirror up and shows us where we’ve been heading all along. Do you think the fixation on Trump’s Russia connection has to do with a desire to refuse that recognition?

It has the benefit of deferring the discussion of why the Democrats lost the election. They’re happy to look at Trump as the ultimate expression of the Republican project, but it’s not just the Republicans that set the table for Trump. It’s the media; it’s Democrats.

Part of what worries me is that when you remember the Bush years, there was this similar sense of “Bush is so stupid, and they’re so awful, and we just have to get rid of them, and then we can relax.” But that’s not enough.

We need a grassroots process of coming up with the political vision. I’d like to see political manifestos springing up all over the place, people’s manifestos. And let politicians be responsive to that, rather than people waiting to be rescued by politicians. There’s maybe too much “we need to be the Tea Party” talk on the left, but one thing the Tea Party did do is get clear on what they wanted, and tell politicians that if they wanted their support, they were going to have to follow.


Welcome To America: Here’s Your Electronic Shackle

Carlos arrived at the Jacob K. Javits Federal Building in Lower Manhattan on a recent Thursday. He wore a heavy black hoodie, black jeans, and construction boots, his shoulder-length dreadlocks pulled back. He passed through two security screenings then rode up to the ninth floor and found his name on a list.

Carlos, 29, isn’t in the United States legally and doesn’t want his real name used for fear it could jeopardize his ability to stay here. He was at the federal building for a scheduled hearing for his immigration case. As the Trump administration has shifted immigration judges toward the border in an effort to speed deportations of immigrants on first arrival, more and more people arriving for their removal hearings in New York are learning on check-in that no judge is available to see them.

Carlos had a judge assigned for his hearing, so he entered a courtroom on the twelfth floor. Born in Honduras, he doesn’t speak English, but the court offered translation services. He checked in with the clerk, who told him to wait outside for his name to be called. He hadn’t been able to find a lawyer to represent him yet. People who were represented by lawyers would have their cases heard first. Everyone else would come afterward.

Carlos’s wife, who we’ll call Sofia, was also born in Honduras, but she came to the United States legally as a child and is now a U.S. citizen. Sofia speaks English, and as they waited for Carlos’s name to be called, she translated as he told the story of how he came to be here last year.

“I was running from something bad,” Carlos said. “I was afraid to lose my life.” He had lived his entire life in La Ceiba, a city of about 200,000 on the Caribbean coast of Honduras, working odd carpentry, construction, and furniture jobs. That all changed on September 20, 2014, when he witnessed a shooting. There was a party at his sister’s house, and someone in the backyard was celebrating by firing a gun in the air. “My brother-in-law went out and told them to stop — there are kids around, the bullets are going to come down,” he said. “The man who was doing it said, ‘What are you going to do about it?’ and shot him five times in the arm and neck. The man who shot him was a big gang member. I was on my way into the house when it happened, and I saw the shooting.”

Carlos was frightened. His brother-in-law survived, but now the family were witnesses, and the gang member knew it. After several weeks, Carlos’s brother-in-law was released from the hospital, and he and Carlos’s sister immediately left town and went into hiding. When Carlos next saw the shooter, the man told him there was a problem between them and only one way to make it right: Carlos must persuade his sister to let the gang sell drugs out of her lunch shop. This would end badly, Carlos knew, but he didn’t dare refuse the gang member. “Let me think about it,” he said.

The next time their paths crossed, the man put a knife to Carlos’s belly and asked him, “Have you thought about it enough yet?” At both this meeting and the previous one, Carlos says, police officers were nearby, but none of them intervened to protect him. Carlos and the rest of his family scattered from La Ceiba, and he moved to a bigger city to the west, San Pedro Sula. But here he encountered the gang member a third time. He decided the only way to be safe was to leave Honduras. On April 4 of last year, he set off north for the United States, where he hoped his half-sister in Houston could help him get settled.

Stories like this are common among people from the Northern Triangle countries of Central America — Guatemala, Honduras, and El Salvador — says Betsy Plum, director of special projects at the New York Immigration Coalition. “There are thousands upon thousands of immigrants who are really refugees, coming from this region, fleeing an epidemic of violence.” According to estimates by the Migration Policy Institute, there were roughly 337,000 undocumented people from Honduras living in the United States in the first half of this decade, of whom between 10,000 and 11,000 live in New York City. The violence in Honduras has continued to escalate in recent years.

Carlos traveled north through Guatemala and Mexico by bus and train, and on foot. At long last, on May 15, 2016, he made it to Mexico’s northern border. But as he and a handful of others he was traveling with approached the banks of the Rio Grande, they ran into a dozen men with guns. “They stopped us,” he says. “They were Zetas. They called their boss and said, ‘We found some people trying to cross, what should we do with them?’ The boss told them, ‘Try to negotiate with them. Those who won’t negotiate, kill them.’ ” Carlos and the rest of the group were taken to a warehouse while the Zetas contacted their families, demanding ransom for their release. The Zetas wanted $4,000 to let Carlos go.

After fifteen days, Carlos’s family managed to scrape together $1,500, he said, and the Zetas released him after he promised to pay the balance once he made it into the United States and found employment.

“This is an absolute commonplace reality that nearly every immigrant coming up through Mexico faces,” Plum says. “The Zetas are one of the most opportunistic criminal organizations on the planet, and they have moved from a focus on smuggling drugs to now also finding ways to exploit vulnerable migrants.”

The Zetas hoped that Carlos would make it to the U.S. so he could start paying them. But on the same day he was released, Carlos was arrested by Border Patrol agents as soon as he’d managed to cross the river. “I went to la hielera,” he said, using the Spanish word for “icebox” to refer to the notoriously cold and uncomfortable temporary detention facilities used to house people found crossing the border. “You’re all wet, and they put you in the freezer. I lost any notion of time, because there’s no night and day. But it wasn’t a long time, not even a week.”

Carlos is clearly uncomfortable talking about his time in detention. “I try to take it out of my mind,” he said. “It was very traumatizing. I had never been handcuffed before.” From there Carlos was transferred to the Val Verde County Correctional Facility, where people facing immigration charges were sprinkled into the general population of accused criminals. After ten days there, he had his first appearance in court, where his bail was set at $12,000. In the weeks and months that followed, he was moved between five different detention facilities in Texas.

Finally, in early August of last year, Carlos’s half-sister put together some money to hire a lawyer, who managed to get Carlos’s bail reduced to $8,000. Then she paid $2,700 to Libre by Nexus, a controversial but fast-growing Virginia-based company that posts bail for people in immigration detention and fits them with ankle-bracelet monitors to track their movements. Libre by Nexus charges the people it posts bail for $420 a month to rent the bracelets.

Immigrations and Customs Enforcement has been using ankle bracelets to track people for years, but it doesn’t charge undocumented immigrants for the pleasure. Libre by Nexus, a young for-profit company unaffiliated with the government, is in the business of making money off the people wearing its bracelets. Its clients pay 20 percent of their bond, plus fees, up front, of which the company keeps 5 percent, passing on 15 percent to the bail bond agent who actually posts the bond. (Libre by Nexus’s founders, Richard Moore and Michael Donovan, are both convicted felons and so are barred in many states from operating a licensed bail bonds operation.) According to a contract filed as evidence in one of several lawsuits against Libre by Nexus, the company rents the bracelets from a provider, Omnilink Systems, for $3 a day, though Libre by Nexus disputes that figure. Libre by Nexus then charges its clients $14 a day for the GPS bracelets. Multiply that profit margin across an estimated 12,500 customers to date, and one can see why the company is in rapid expansion mode, with 22 offices in cities ranging from Tacoma to Orlando to New York.

Libre by Nexus did not respond to repeated emails and telephone calls regarding the Voice’s request for an interview.

When he was first outfitted with the bracelet, Carlos was just happy to be able to enjoy some modicum of freedom. “I understood what I was getting into,” he told the Voice. “It was worth it. Being in detention is very bad.”

Carlos had hoped to stay with his half-sister, but she was in the midst of separating from her partner and relocating to New Orleans, and said she couldn’t put him up. Since his release on bail didn’t carry travel restrictions, Carlos came to New York, where a friend from Honduras was living in the Bronx and offered to help him get settled.

Last September, he saw Sofia at a party. The two had met once before, years ago, when she was visiting her family in Honduras. Now they began dating, and Carlos eventually moved in with her and her three daughters in a two-room Section 8 apartment in Bushwick. They were married this past May. Aside from the $500 a month they pay in rent, the monthly fee for the bracelet is their biggest expense. Carlos isn’t legally allowed to work while his case is pending, though he picks up odd painting and construction jobs when he can. Sofia, a home health aide for more than a decade, makes around $15,000 a year. “There have been times when we’ve had to decide between paying our other bills and paying for the bracelet,” she said.

But beyond the expense, the bracelet is inconvenient and humiliating, Carlos said. When Carlos first met Sofia’s children, she didn’t want them to see the bracelet, lest they think he was a criminal. When he’s on a job, he changes his clothes in the corner, out of sight of his co-workers, ashamed of what they will think of him. The bracelet must be charged regularly, and there is no replaceable battery, so for at least two hours a day Carlos must sit next to an electrical outlet. If the signal weakens, he gets a call from Libre by Nexus. If he fails to pay his monthly charge promptly — as has happened on a few occasions — the bracelet begins to vibrate conspicuously.

Carlos can’t help but feel that the bracelet is just one more way for opportunists to profit from his vulnerable situation. “It’s like being kidnapped all over again,” he said. “It’s like being in jail.”

Compared to many undocumented immigrants’, Carlos’s prospects look relatively good. He recently applied for asylum, on the basis of the threats and violence he fled in Honduras. Many immigrants don’t know that they are required to file their application for asylum within their first year in the United States, and miss the deadline (applying for a waiver after that is difficult). But it’s far from a sure thing that Carlos will win asylum. Proving the truth of the events he describes taking place in Honduras is not easy, and even if he can, immigration courts tend to privilege claimants fleeing violence more clearly tied to state actors — civil wars, government torture cells, and the like.

“The courts don’t always realize that when you’re talking about these gangs, you’re talking about paramilitary groups that are working in collusion with corrupt governments, or in the power vacuum they’ve left empty, and that they’re able to operate because the justice system is completely hollowed out,” says Juan Carlos Ruiz, a Lutheran pastor who helps lead the advocacy and services group New Sanctuary Coalition of New York City. “The added irony is that in these countries, the weapons, the gangs, the destabilization — they were all exported from the United States in the first place.”

Because Sofia is American, Carlos has another route to apply for permanent residency, but that route is expensive — lawyers regularly charge several thousand dollars to shepherd a married couple through the process — and by no means certain. Because they were married so recently and new marriages are often viewed skeptically by officials, Carlos and Sofia have been advised to wait at least another six months before they consider this option. “It isn’t what movies would have you think, that you marry an American and you live happily ever after,” Plum says. “There are many factors that can make the process extremely difficult.”

Carlos does have a legal right to remain in the United States while his deportation proceeding and asylum application are pending. But as reports of newly aggressive immigration enforcement and summary deportations proliferate, the couple feels uneasy.

“With the election of Trump, I think it changed a lot,” Sofia says. “I’m scared by the things on the TV. When [Carlos] doesn’t call me, or answer my phone calls, I’m scared. Maybe they grabbed him.”

“People here have an idea of immigrants as criminals, even though we’re not,” Carlos said. “Give people a chance, because these opportunities that exist here don’t exist other places.”


Fearless Girl’s Wall Street Dads Wanted Her To Be A Cow

Remember the statue of the Fearless Girl that showed up in Bowling Green on International Women’s Day, staring down the Charging Bull of Wall Street? The statue that turned out to be paid advertising for a global finance company flogging a new financial product? A finance company that, notwithstanding its avowed commitment to expanding the role of women in corporate leadership, is headed up by a leadership team that is 82 percent men? The statue that nonetheless many found to be a powerful symbol of feminist resistance?

It turns out that State Street Global Advisors actually wanted its advertising statue celebrating the strength, intelligence, and equal humanity of women to be a cow. According to emails unearthed by Linda Massarella of the New York Post, SSGA’s consultants first approached the city about installing a big bronze cow in Bowling Green to celebrate International Women’s Day. Stuart Weissman, a contractor hired by SSGA to shepherd its statue vision to reality, told the city permitting agency in December that “the client realized, after we had gone down the road a bit, that a cow sculpture could be conceived as demeaning to women.”

That’s a good realization the client came to!

It’s hard to know why all the gushing behind-the-scenes media narratives extolling the creation of the Fearless Girl moment skipped over the part of the project where SSGA was planning on tapping into women’s latent enthusiasm for #CowPower. One can imagine early drafts of the attendant social media campaign: “Ladies! Show your support for gender equity in the corporate boardroom by tagging yourself #IAmACow!”

The emails reported on by the Post don’t shed much light on SSGA’s internal deliberations and vision-boarding, or how the cow idea got as far as it did, but as one thinks about it, it’s hard not to come back to the fact that the people trying to sell you a girl-power financial product look like this:

SSGA's leadership team
SSGA’s leadership team

Though it has since been scrubbed, the version of the story initially published by the Post also noted some influence-flexing on the part of SSGA’s agent. “Somebody amongst the higher-ups has a relationship with Kathy Wylde,” Weissman wrote to the city regulator in March, referring to the powerful head of the pro-business organization Partnership for New York City. “I may not be able to stop them from reaching out to her, or reaching out to someone else.”

The message was plain: Whether represented by a cow or a little girl-child, the power of women, as conceived and monetized by a room 82 percent full of men, is not to be denied.


A Spiteful Afternoon With NY’s Anti-Muslim Hate Brigades

It was pelting rain on East 42nd Street outside CUNY’s headquarters on Thursday afternoon, but that didn’t keep several hundred people from turning out for a gathering of the Greater New York Area’s far-right tribes.

Islamophobes, 8chan trolls, western-chauvinist frat boys, anti-Antifa brawlers, Jews for Trump, and further boisterous motley collected in a pen of police barricades, calling for CUNY to disinvite one of the most prominent Muslim women in the United States from speaking at the university’s commencement ceremony next Friday.

Addressing this crowd was New York Assembly Member Dov Hikind. “Let us make something very clear,” Hikind said. “Linda Sarsour supports terrorism!”

Hikind’s bill of indictments supporting his terrorism accusation was pretty thin gruel: Sarsour — until recently the head of the Arab American Association of New York and one of the co-chairs of the 2017 Women’s March — is vocally critical of Israeli policy; she recently shared a stage with Rasmieh Odeh, who 47 years ago was convicted in an Israeli military court on terrorism charges; and she once wrote a tweet suggesting that a photograph of a Palestinian boy holding a rock in the face of armed Israeli soldiers depicted courage. “She thinks throwing rocks at cars is an act of courage,” Hikind bellowed. “ ‘The definition of courage’ is throwing rocks. Throwing rocks at cars. Throwing rocks results in the murder of innocent men, women, and children.”

Leaving aside the strength of his evidence, Hikind was an unlikely vehicle for accusations of terrorist sympathy, given that he himself was once an actual member of an actual terrorist organization, an association from which he remains unwilling to distance himself.

As the attacks on Sarsour have mounted, Jewish allies have leaped to her defense, noting her history of collaboration and bridge building between Muslim and Jewish groups.


But the scrum on East 42nd Street represented more than just a flare-up in New Yorkers’ disagreements over Middle Eastern politics.

The event was emceed by Pamela Geller, who rode to notoriety as one of America’s preeminent Islamophobes in 2010 opposing the construction of an Islamic cultural center in Lower Manhattan. (Geller herself dismisses the label of Islamophobia, and frequently cites a quotation she misattributes to Christopher Hitchens: “ ‘Islamophobia’ is a word created by fascists, and used by cowards, to manipulate morons.”)

Geller brought with her a parade of other stars of the Islamophobia firmament. “There are the evil losers to whom President Trump referred over the weekend after the horrific Manchester terror attack, an attack that I might add that people like Linda Sarsour likely supported since it led to the murder of infidels and non-Shariah-abiding innocents,” said Lauri B. Regan, a lawyer who writes frequently about the creeping threat of Shariah law. “There is no question that Linda Sarsour is an evil loser. Evil loser.”

Regan was followed by John Guandolo, a disgraced former FBI employee who is on the record as believing that “we need to find the Islamic movement anywhere it is, including in the United States, and crush it and defeat it now.” Islam and terrorism are one and the same, Guandolo charged. “Legally, we need to do everything that we can to crush them and destroy them here in the United States.”

Rightist movements of all stripes have increasingly framed their causes as matters of freedom of speech in recent months, accusing their critics of attempting to silence legitimate speech. That these same movements were now rallying to deny someone a platform produced some measure of cognitive friction. “Freedom of speech is a precious commodity in America, and nobody wants to take away anyone’s freedom of speech,” Hikind told the crowd. “But when CUNY imposes Linda Sarsour on the students, that’s outrageous! Shame on CUNY! Shame!”

Gavin McInnes
Gavin McInnes

As the speakers droned on, the colorful petri dish of New York’s freshly visible right-wing communities frothed and bubbled. Denizens of the trollier corners of the Internet, decked out in riot-police cosplay and brandishing the Gadsden and Kekistani flags, traded inside jokes about throwing leftists out of helicopters. Members of the Warriors for Freedom, who present themselves as reluctant pugilists sworn to defend the vulnerable from the violence of anti-fascist aggressors, folded their arms and gazed out impassively from behind wraparound sunglasses. Gavin McInnes, a co-founder of Vice Magazine who has since devoted himself to drumming up pledges for his brownshirt-Chad fraternity devoted to the supremacy of “western civilization,” paced the event area, surrounded by a coterie of young men in Make America Great Again hats. At one point, he taunted a small group of counter-protesters from behind a row of police officers, offering them a can of Pepsi.

The attention of the crowd focused somewhat for the event’s headliner, Milo Yiannopoulos, a fading provocateur who was permanently banned from Twitter last year for instigating a racist harassment campaign against Leslie Jones and who lost his post at Breitbart in February after he made remarks that made light of pedophilia.

Yiannopoulos was in fine troll fetter, and his audience drank it up. He called CUNY’s leadership “spineless cunts.” (Applause.) “The enemy you as Americans have always faced is the enemy from within.” (Applause.) “The enemy here are the progressive elites,” and “their ideology is as ugly as Chelsea Clinton.” (Thunderous applause.)

But even as he insulted Sarsour’s appearance and her religion, Yiannopoulos wasn’t on quite the same page as the rest of the rally: Sarsour should speak at CUNY, he told the crowd.

“I would have paid her fee, no matter how many goats she asked for,” he said. “Don’t ban her.” It was a sentiment diametrically opposed to the organizing rationale of the rally, but participants seemed not to care. Ideological coherence was less important to participants than the opportunity to gather together outside the Internet, raise their voices, and flex their muscles.

As the rally ended, participants assaulted a 19-year-old woman who’d been taking part in the counter-protest. Police detained some people, but no arrests were made.



Report: Rikers Still Full Of New Yorkers Who Can’t Afford Bail

The jails on Rikers Island remain largely filled with people who have yet to be tried, and those prisoners remain overwhelmingly black and Hispanic and too poor to afford bail, according to a new report from the city’s Independent Budget Office.

The report, which was compiled at the request of City Councilmembers, outlines the cold statistics of what New York’s jail population looks like. The average daily jail population last year was 9,790, of which 78 percent were people awaiting trial. Of those pretrial detainees, 52 percent were black, 33 percent Hispanic, and 10 percent white, the report found. (New York City’s overall population in 2010 was 44 percent white, 28 percent Latino, and 25 percent black, according to the U.S. Census Bureau.)

The disproportionate ratio of black and brown New Yorkers locked up awaiting trial sits alongside an equally disturbing statistic: Nearly three-quarters of pretrial detainees are being held at Rikers because they were unable to post bail at arraignment and are literally behind bars because of their poverty.

Some of these people have been charged with serious crimes: 1.2 percent of them have been charged with murder, attempted murder, or manslaughter; nearly 1 percent of them have been charged with rape. But far more of them are facing relatively low-level charges: a third of them are facing misdemeanor charges. Another 15 percent have been charged with drug felonies.

Keeping these people locked up isn’t cheap, the Independent Budget Office report notes. The Department of Correction spends an average of $118,693 per year per inmate. The IBO estimated that the cost to the city of caging people too poor to pay their bail is approximately $116 million.

The transparent iniquity of a system that deprives people — still innocent in the eyes of the law — of their liberty, simply because they are too poor to buy their way out, has been a subject of public discussion for quite some time.

There’s no reason it has to be this way. Judges have the power to set forms of bail that don’t penalize poor defendants; prosecutors have the power to request bail less frequently and in lower amounts. In recent years, the Mayor’s Office of Criminal Justice has undertaken some preliminary steps toward reducing the number of New Yorkers incarcerated for being poor.

But many criminal justice reformers want to take bolder action. Last month, a blue-ribbon commission led by Jonathan Lippman, the former top judge in New York, issued a blueprint for shutting down Rikers entirely in the next ten years, drawing down the jail population and redistributing it to smaller, more manageable jails closer to county courthouses.

Mayor Bill de Blasio has been less than enthusiastic in his pursuit of this goal. It was only on the eve of the report’s release, when he risked becoming outflanked by the City Council, Governor Andrew Cuomo, and a panel of respected experts, that he called a hurried press conference to announce that he shared the fundamental goal of closing Rikers in the next ten years. Weeks afterward, he still says he hasn’t read the report and has resisted being pinned down on when he will begin the politically delicate work of building the new facilities that will be necessary if Rikers is to be closed.

The mayor’s office responded to questions about yesterday’s report with a statement touting the progress the city has made on the issue. “Since Mayor de Blasio took office, the number of people detained on bail of $2,000 or less has dropped by 36 percent,” said mayoral spokesperson Natalie Grybauskas. “We believe no one should be detained simply because they can’t afford bail, and we’ve invested in an array of strategies — including new diversion programs and efforts to make it easier to pay bail — to reduce the number of low-risk people who enter our jails.”

But some on City Council are unimpressed by the mayor’s commitment to the cause. De Blasio “has always been worried that [criminal justice reform] issues would poison his relationship with tabloids and open him up to accusations of being soft on crime and criminals,” said Councilmember Rory Lancman, who requested the IBO report. “He’s not willing to expend an ounce of political capital on real criminal justice reform because that would deplete the political capital available to him to do things he cares about more. He’s had no problem sacrificing criminal justice reform on the altar of political expediency.”

Faced with the opportunity to do more, de Blasio is hedging, Lancman said. De Blasio opposes a bill Lancman has introduced that would collect financial information from defendants so judges would know their ability to pay bail before they made decisions about setting it. And the mayor’s budget doesn’t include any significant expansion of funding for the city’s supervised-release pilot program or Alternatives to Incarceration diversion programs.

Lancman hopes the new IBO report can help break the logjam, he said. “Hopefully this will persuade the mayor to come up with an actual plan for closing Rikers.”


When Poverty Is A Crime On The Subway

The city should fund half-price MetroCards for New Yorkers at or below the federal poverty level to keep people out of jail, transit advocates, public defenders, and community organizers said at a rally outside City Hall Wednesday morning.

The Fair Fares campaign already enjoys the support of a veto-proof majority of City Councilmembers, who voted in March to fund a $50 million pilot program that would provide half-price MetroCards to an estimated 380,000 New Yorkers making less than half the federal poverty level.

Mayor Bill de Blasio has so far resisted the plan, saying the city can’t afford it, and that in any case responsibility for subway fares rests with the state.

Jodi Morales-Vargas, a lawyer with the Bronx Defenders, told the crowd that fare-evasion charges have become one of the major ways that people are drawn into the criminal justice system, with 37,500 people receiving jail sentences for fare evasion between 2008 and 2013, and 2,000 fare-evasion prosecutions between last September and this February.

“Those thousands of people are costing the city a lot of money,” Morales-Vargas said. “We’re spending an exorbitant amount of money prosecuting cases that we don’t need to.”


Tina Luongo, who heads the Legal Aid Society’s criminal practice, said affordable access to public transportation touches every aspect of New Yorkers’ lives.

“This is not just a criminal justice issue,” she said. “This is an issue that affects our communities, it affects people’s ability to gain employment, housing, day care, education, special needs medical attention, and treatment. So if we frame this as a criminal justice issue, we are losing sight of a much bigger picture.”

The federal poverty level is an income metric used to determine access to various government programs. It ranges from an annual income of $11,880 for an individual to $40,890 for a family of eight, according to state data.

“Public transportation is not public if the public cannot afford it,” said City Councilman Carlos Menchaca. “This is a lifeline for so many people.”

Herman Frazier, 65, of Brownsville, says he’s watched rising subway fares drive more and more people in his neighborhood to turnstile hopping.

“Since the fare went up, people just can’t afford it anymore,” he said. “You see people asking for a swipe, asking for a swipe, and then when the time runs out and they have to get to work, they’ll hop the turnstile. Sometimes, it’s kids beating the fare because they’ve got to get to a court date for beating the fare!”

The City Council continues to hold hearings on de Blasio’s proposed $85 billion budget this week. The mayor and the council must reach agreement on a budget by the beginning of the fiscal year in July.

Top image via John St. John/Flickr