Police Encounters & Misconduct
1. When can police stop me on the street?
In theory, the police cannot stop you on the street without reason. A New York State Court of Appeals case (People v. DeBour 40 N.Y. 2d 210) established four levels of street encounters between police and people, and allows a different "Permissible response" by the police in each one:
- If an officer has "objective, credible reason" she can request information. Ex., if there has been an accident and the officer thinks you may be a witness, she can approach you and ask, "Did you see the car run a red light?"
- If the officer has "founded suspicion" that criminal activity is happening, she can ask you about it pointedly. Ex., if the officer sees a bulge in your pocket, she can ask "Do you have anything on you?" At this point, you can, legally, refuse to answer and walk away calmly without giving rise to the next level of intrusion.
- If an officer has "reasonable suspicion" that a person committed, is committing, or is about to commit a crime, she can forcibly stop, pull over, pursue, or temporarily detain the person. Legally, they can only frisk if there is reasonable suspicion that you are armed or committed a violent crime. Ex., if you are pacing back and forth in front of a store looking like you're casing for a robbery, the officer can stop you forcibly. At this point, they also can't search you or arrest you and bring you to the precinct unless you consent to it.
- If an officer has "probable cause" to believe that a crime was committed, and that you committed it, they may arrest you. Ex., the police observed you selling drugs; someone called the police and complained that you assaulted him.
2. What if I experience police violence or misconduct?
If you have had a negative interaction with the police, you have the options to file a complaint with the Civilian Complaint Review Board (CCRB) and/or to file a lawsuit.
No matter what you plan to do, write down the details of your encounter with the police as soon as possible after the incident. Write down everything you remember, including: the date and approximate time of the incident, the location where it occurred, the officer's name and/or identification number (if you remember it) and the license plate number of the police cruiser (if you remember it). Even if you can only recall the date, time and location of the incident, this information is often enough for the police department to identify which officer was responsible for the misconduct. If you can remember any identifying features of the police officer - gender, race/ethnicity, hair or eye color, or approximate height, weight, age, or any unique characteristics, write those down as well.
Filing a complaint with the Civilian Complaint Review Board (CCRB)
- The CCRB handles complaints from people who have experienced:
- excessive force
- abuse of authority (example, an improper stop and frisk)
- discourtesy (example, cursing, obscene gestures)
- offensive language ("slurs, derogatory remarks and/or gestures based on a person's sexual orientation, race, ethnicity, religion, gender or disability")
The CCRB reviews allegations of police misconduct and files these allegations on the officer's permanent record. Depending on the results of the police department's investigation, the police officer may receive disciplinary action.
- You can file a complaint with the CCRB in a variety of ways:
- Call CCRB hotline by dialing 311 (outside of New York, you can reach the CCRB at 212-NEW-YORK or 212-504-4115)
- File a complaint in person at 40 Rector Street, 2nd Floor, Manhattan, Monday-Friday, 8am-5pm
- File a complaint online (visit https://www.nyc.gov/html/ccrb/html/complaint.html)
For more information on how the CCRB works, visit http://www.nyc.gov/html/ccrb/home.html.
Filing a Lawsuit
If you think you might want to file a lawsuit against the Police Department, you must first fill out a Notice of Claim within ninety (90) days of the police misconduct. You can obtain a Notice of Claim form at www.comptroller.nyc.gov/bureaus/bla/notice-of-claim.pdf.
The actual lawsuit must be followed within two years of the incident. To find legal representation for your lawsuit, you can call the City Bar Legal Referral Service at (212) 626-7373. Note: if you would like to file a lawsuit, you might want to wait to file a complaint CCRB because the evidence in the CCRB proceedings could be used against you in your lawsuit.
3. What happens if I am arrested?
Police officers are allowed to arrest you if they have probable cause to believe that you committed an offense. "Probable cause" is defined by the U.S. Constitution as a minimum amount of evidence that a crime was committed, and that you committed it, needed to arrest you and move forward with a prosecution against you.
Violations, misdemeanors, and felonies are the three main types of offenses that can result in imprisonment or payment of fines. They are defined in New York Penal Law Section 10.00. .A violation, or non-criminal conviction, is the least serious of the three, and can result in a sentence of 15 days in jail or fewer. A misdemeanor, or "petty offense," can result in imprisonment of up to one year, and a felony is the most serious, carrying with it no limit on the amount of time that can be imposed. In New York State, only felonies and misdemeanors are considered crimes.
Once you are in custody, the police must follow certain rules and procedures. These are laid out in the New York Criminal Procedure Law Sections 150 and 160. In New York City, once you are in the custody of the police, you will be handcuffed and searched. The officers are entitled to take personal property, any contraband (anything prohibited by law) or evidence of the crime (including proceeds of the crime and anything that may tie you to the crime). Remember that anything you say may be used against you in later court proceedings, so it is best to say "I want a lawyer" and nothing else. You have the right to a lawyer, and the court will appoint one when you get to court if you can't afford one.
You will be transported to the local police station. Occasionally, once you are at the police station, the officers will decide they made a bad arrest, and do not have enough information to charge you. If this happens, they should release you from the precinct and end the case against you. This is called a "Voided Arrest." Voided arrests should be sealed and should never show up on any criminal background checks.
If you are charged with a less serious crime, the officer may give you a Desk Appearance Ticket (referred to as a "DAT"), which releases you from police custody. It also provides the time and location where you must appear in court to learn what charges are being brought against you. This court proceeding is called an arraignment.
If the officer decides you should be charged with a more serious crime, you will be held in custody for up to twenty-four hours. During this time, you will be brought to a place often called "Central Booking" where you will be fingerprinted and photographed. A fingerprint report, more commonly referred to as a "rap sheet" is generated which documents your criminal history. Also during this time, the prosecutor meets with the arresting police officer to decide whether or not there is enough evidence against you. If he or she decides that there is not enough evidence to convict you, you will be released - this is called "Declined Prosecution". Otherwise, you will be brought to the court for arraignment.
Before your arraignment you will have a chance to meet with a lawyer. If you can't afford a lawyer, the court will appoint you one and you will meet with him or her before you are brought before the judge. Your lawyer should explain the charges being brought against you, and will probably ask you questions that could help to get you released from jail while your case is open.
You will then appear with your lawyer before a judge, who will decide either to keep you in jail (this is called remand), order bail, or Release you on your own Recognizance (ROR.) Bail is cash or a bond posted by you as a guarantee that you will return to court. ROR means that the judge trusts that you will return to court even without bail at stake. While there are no guarantees, it is helpful to have family members in the courtroom at your arraignment. If a judge believes that you have strong ties in the community he or she is more likely to Release you on your own Recognizance or to set lower bail.
*This handout is an excerpt from The Consequences of Criminal Charges: A People's Guide, published by The Bronx Defenders. It is for informational purposes only and is NOT a substitute for legal advice. It is up to date as of October 2010.