Since the beginning of the year, arrests on New York City's subway have increased by 300 percent. The arrests have targeted subway performers and the homeless; they have included low-level crimes and violations such as panhandling and fare dodging; and also involve the NYPD handling MTA's standards of conduct.
Arbitrary rules such as "no sleeping on a subway car in a way that is hazardous or interferes with others" have turned into the NYPD brutally arresting a man on his way home from work in an almost empty subway car. He was later charged with resisting arrest, obstructing governmental administration and violating local law (the MTA rules).
Although performing on the platform and mezzanine is legal (there is no permit or permission needed), subway performers have experienced an unprecedented amount of harassment from NYPD officers this year.
As the Police Reform and Organizing Project's (PROP) Report "A True Tale Of Two Cities" (where they monitored New York City’s courts) shows, these instances are not the extremes; they occur frequently. During one day of court monitoring, they found one lawyer who represented four different people for subway arrests because they had a foot on a subway seat: "One case stood out for the attorney: A 22-year-old black male college student with a part-time job, an appropriate ID, and no criminal record, had to spend well over 24 hours in jail. A police officer arrested him when the train was only four stops away from his house."
In PROP's "Everyday" report, they outlined some of the petty offenses people were often arrested for while they were court monitoring. Many of these offenses occurred on the subways including, "walking between subway cars, sometimes even when the train is stopped. Occupying two seats on a subway even when the train is mostly empty or is not crowded. Putting a foot on a subway seat. Putting a backpack on a subway seat. Using a loved one's metro card to enter the subway. Asking another person to swipe you onto the subway. Sleeping on the subway. Begging on the subway or in other public places."
Subway Performing and the NYPD
Although performing on the platform and mezzanine is legal (there is no permit or permission needed), subway performers have experienced an unprecedented amount of harassment from NYPD officers this year. In August, Matthew Christian of the group Busk NY, outlined the three main ways police have interacted with subway performers this year: ejection, ticketing or arrest. Ejection means a performer is approached by a police officer and told to leave the station. As Matthew Christian says, "there is no documentation of this [ejection] process. There's no record of it," leading to not having a specific statistic on how often this incident occurs.
Multiple NYPD officers have admitted that the department has formed specific units of undercover police officers to go after dancers on the subway trains.
Within the arrests, some subway performers have noticed that there is a racial discrepancy. In an interview with Truthout, Kenny of the SoulWhat Crew, which showcases artists, called the behavior "similar to stop and frisk."
The NYPD's main target within the subway performers are the subway dancers: "They come down on the dancers hard because it's a bunch of minorities that are out here doing it. It's not Caucasian kids in groups dancing on trains. It's only a bunch of blacks and Latinos doing it," said Kenny, who does choreographed dancing on the subway trains. Heidi, a white female performer who performs on the subway platform, also told Truthout that black performers are more likely to get bothered or arrested by the NYPD.
Multiple NYPD officers have admitted that the department has formed specific units of undercover police officers to go after dancers on the subway trains. Kenny was shocked to hear this.
"When we got arrested and we were asking questions. They were telling us that . . . the police departments in the train station have special units now that are specifically going out to arrest dancers. That shocked me [and] put it into perspective . . . like a gang unit or a drug unit, they have a unit that comes out just specifically for us? It crushed me because all we do is dance."
When Kenny was arrested this year, the NYPD officer was hiding in the conductor's car of the subway train. Kenny and his dance crew look out for police officers on subway cars to avoid arrest. They've noticed an increase of officers on subway cars this year, but also an increase in the seriousness of the charge.
Before this year, Kenny was more likely to get a ticket for dancing on the train, but interactions with police gradually turned into a disorderly conduct charge and then, a reckless endangerment charge like the one he received at the beginning of the summer.
"Usually they [would] give us a ticket or give us warning or fine us. But sending us through the whole system of getting cuffed, getting transferred to the precinct, putting us in a cell . . . You were there for five or six hours waiting to get transferred to Central Booking where you know you're going to be sleeping on the floor or sleeping on the hard bench and . . . you're in there for a violation."
The judge usually dismisses the charges, but only after Kenny spends at least a night in jail.
By July 2014, there had been at least 240 arrests (at least 142 were charged with reckless endangerment) of subway dancers, a 500 percent increase in arrests from the year before. The NYPD did not respond to requests for an updated statistic on how many subway dancers have been arrested.
In the 10 years that Daniel has been dancing on the subway trains, he has been arrested 10 times. Half of these arrests occurred in 2014.
While dancing on the subway does not adhere to the MTA rules, the penalty for the violation consists of a $100 maximum civil penalty ticket. However, this year has seen a significant increase in the number of dancers arrested with unprecedented charges (as opposed to getting a summons or ticket) like disorderly conduct and reckless endangerment.
The reckless endangerment charge is defined as follows:
A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury or creates a grave risk of death to another person.
At a press conference in August, Busk NY's Matthew Christian accused the NYPD of trumping up the charges for subway dancers.
"Reckless endangerment as a Class A misdemeanor carries up to one year in jail. This strikes as being . . . wrongful. There are no documented instances of an injury to a rider from a dancer, and it's clear that there is not a substantial risk of either death or permanent disfigurement. This is an extreme charge. It is not one that can hold up in court . . . These are also expensive they require . . . spending a night in jail. They're hurtful to performers."
For 24-year-old Daniel, who is married with two kids, dancing on the train is his main source of income. He earns enough to pay his rent, bills, and to feed his family. However, his job still comes with a very real chance of arrest. In the 10 years that Daniel has been dancing on the subway trains, he has been arrested 10 times. Half of these arrests (five) occurred in 2014. When he was arrested in July with two other people from his dance crew, he spent three days in jail. According to Daniel, they were held in the precinct for about 10 hours before they were transferred to central booking.
Despite promises of food from the booking officers, they were given no food during the 10 hours. Three days passed in Central Booking until their paperwork was finally processed, and they were allowed to go home. Because Daniel is lactose intolerant, he couldn't eat the cheese and bread they provide detainees. He went three days without food.
Subway dancers aren't targeted on the trains only. They are often arrested and charged with disorderly conduct or reckless endangerment while dancing on the platform as well - despite the fact that it doesn't violate MTA rules.
In July 2014, five dancers were arrested and charged with reckless endangerment - and one with resisting arrest - for dancing on a subway platform in Brooklyn. At times, they are stopped and hassled even when they are not dancing at all. Daniel and Deroy, who both dance on the subway in the 2 Live Crew, described getting profiled while they were riding the subway.
Daniel says, "There was a time when we were arrested, and we didn't even perform on the train because they just know we're dancers . . . [We're] headed to play basketball or we have a radio with us [because] we always carry the radio. We were walking on the train. We didn't perform and we got arrested. They grabbed us." Deroy jumped in: "They'll fit you for a stereotype. They don't even ask us our names. They just put us in handcuffs and held us."
The fact that the charges don't even hold up in court just adds to the meaninglessness of the arrests and the charges in the first place.
Deroy explained another time the NYPD profiled and ejected him: "It happened one time me and my crew were just sitting down and in the [train] car with our radio, and we see two cops that came to the car that told us to get off the train. They didn't put us in handcuffs or nothing but they questioned [and ejected] us."
The arrests have a great effect on Daniel's life: "First of all, it stops my money. It stops me from doing what I have to do because when I dance . . . I have something to pay [like bills] or I just need money for my pocket. It keeps me away from my family, and it also breaks me down because I can't even express my talent."
Daniel and Deroy always plead not guilty, and the charges can eventually be dropped if he adheres to certain standards for six months (an adjournment in contemplation of dismissal). But for Daniel, the fact that the charges don't even hold up in court just adds to the meaninglessness of the arrests and the charges in the first place. As Daniel shows me some of the moves he does on the subway, he is professional and focused. His dance moves are coordinated and succinct.
"For the 10 years I've been dancing and our crew's been dancing, our crew members haven't kicked anybody," he tells me.
Pleading Not Guilty Not Always an Option
For others, pleading not guilty isn't that simple. Twenty-eight-year-old Marc has been working on the subway trains for over 13 years. At one point, he sold candy, then he was a yo-man ( he held the boom box and bags for dancers, and he got a percentage of their salary), then a subway acrobat dancer on the L train - and now he sings on the platform and in the train. For the many people who have been labeled transit recidivists like Marc, getting a summons is not an option. If they are stopped by police, they immediately go to jail.
There are multiples ways you can become a transit recidivist (ways that may vary by borough) including: 1) obtaining five summonses in a two-year period; 2) getting previously arrested on the subway; 3) having an outstanding warrant or unpaid ticket or summons; or 4) having been charged with a felony in the past. The NYPD did not respond to questions on the specific standards used to determine whether someone is a transit recidivist, how long the label stays, and how many transit recidivists are currently in the system.
The NYPD officer was attempting to take the money he made from dancing, but changed his mind when he noticed his superior watching.
A couple weeks before I interviewed Marc, he had been arrested and spent the night in jail for walking through the train cars. He was given time served. The week before that, he was arrested on the platform while singing and charged with panhandling. He was given a day of community service. Every time he's arrested and appears before a judge, Marc pleads guilty - even if he believes he's innocent. Because of a nonviolent drug conviction back in 2008, Marc has a felony on his record and pleading not guilty could mean spending time in Rikers or another jail facility before his next trial date.
Marc told Truthout his nonviolent drug conviction comes from a situation where he held drugs for three days for a friend in exchange for a place to stay but is clear that he "doesn't want people thinking [he] was some drug dealer when [he] wasn't."
Earlier this year, Marc was charged with obstructing governmental administration in the second degree (a class A misdemeanor), after getting stopped on the subway for dancing. He spent 60 days in Rikers. Marc says the NYPD officer was attempting to take the money he made from dancing, but changed his mind when he noticed his superior watching. On different occasions he's been charged with panhandling, reckless endangerment, disorderly conduct and unlicensed vending.
For Marc, subway performing is all that he has. "I got a record; no one's gonna hire me," he says. "I have felonies. There's not a lot of [job] opportunities that I could get. I've went through experiences where they discriminated because I had a record . . . It kinda put me in the state where I'm like I don't have no other alternative but to be my own boss. I can't work for no one else because [they're not] willing to deal with my background and pay me what I'm worth . . . $8.59 [an hour] is not even an option."
He went on to discuss low-wage salaries later in the interview: "[Why would I want to] flip burgers for $9 an hour when I know good and well I can stand on Time Square and get $19, $29 an hour?"
"The police use 'Disorderly Conduct' charges as a pretext to arrest homeless people, even when they're not breaking any laws…"
When Marc is arrested for performing, he sees it as "a wake-up call, each time it happens . . . dealing with the law and knowing my full worth - [I can see] there's something wrong with the system that we live in." The system he describes as: "There are a lot of people who are educated and have the finances, and they know that the bulk of the people don't. So instead of them spreading the knowledge and finances so all of us can kinda be on an equal level, they keep it."
His time on Rikers Island and in an upstate prison has stimulated these views. "It's a whole other world [in prison], and the [people] that's in there, it's me and you. the majority," he says as he points to his skin color, referencing that we are both black.
Fare Evasion, Panhandling, NYC Cost of Living
Another element of the NYPD's tactics in the subways are arrests for fare evasion, panhandling and homelessness.
In March, the NYPD and the MTA announced plans to remove homeless people from subway stations. The announcement was met with fierce resistance, and the MTA announced their plans of removal would be postponed - although with no announcement of when a future plan would be. Homeless people are often targeted in the subways under low-level violations such as loitering, panhandling or disorderly conduct. Picture The Homeless describes how these arrests and charges affect the homeless population.
"The police use 'Disorderly Conduct' charges as a pretext to arrest homeless people, even when they're not breaking any laws . . . [the] charges are bogus. The regulating statute as it currently exists is overly broad and gives the NYPD wide discretion to define what 'disorderly conduct' is."
They go on to describe the effects of being arrested:
"The effects of such arrests are harmful [and] can lead to having one's belongings confiscated. Furthermore, if you are residing in a shelter, you may lose your bed . . . Lost time from work due to arrest can result in loss of employment, not to mention that such arrests, as unjust as they may be, can also initiate a criminal record which can serve as a barrier to employment. Lastly, the New York City Housing Authority will disqualify a person for eligibility in the public housing system if they are convicted two times of disorderly conduct."
Fare evasion is often the term used when someone jumps a turnstile or goes into the subway station through the emergency exit door. The tactics the NYPD uses for catching fare dodgers are as follows: Uniformed officers hide behind corners waiting to see someone asking for a swipe or jumping the turnstile and plainclothes officers linger around the turnstiles.
Recently, police officers have been seen approaching seemingly random people who have already passed through the turnstile and are waiting for their train on the platform. The officer will ask or demand to see their metrocard to prove that they've swiped in. That is the situation that occurred with A.B. Simmons, who was waiting on the platform for 20 minutes before he was approached by NYPD officers and accused of not swiping in to the train station. Simmons - who has an unlimited metrocard he bought a few days before the incident - was pepper sprayed, arrested and charged with fare dodging, resisting arrest and disorderly conduct.
The New York Daily News published a report listing fare evasion as the number one offense in New York City leading to incarceration.
Fare evasion tactics have also been used to catch "swipe backs": people asking for a swipe to enter the metro station. Swiping someone into the metro station does not violate MTA rules as long as one doesn't solicit money for the swipe. However, that hasn't stopped the NYPD from stopping and arresting people asking for swipes and charging them with "thefts of services" or "unlawful solicitation in the subway." In the PROP court monitoring report, requesting a swipe was cited as a common reason for arrest.
Fare evasion arrests have increased by 69 percent in recent years. With 12,747 fare-beating arrests in the first six months of this year, it is on track to being higher than 2013. The New York Daily News published a report listing fare evasion as the number one offense in New York City leading to incarceration. This means that people are getting sentenced to jail time (or held in jail and then sentenced to time served), in facilities such as Rikers, for being accused of evading a $2.50 fare charge.
"Abuse" of Police Resources
Those arrested for fare evasion are often charged with "thefts of services," a class A misdemeanor for which the penalty can be up to a year in jail. A public defender who works in the Bronx is dismayed at the NYPD and District Attorneys' approach to fare dodging:
"It's an incredibly wasteful way to abuse police resources. Bringing them through the system for a $2.50 offense. The numbers just don't add up. It costs hundreds of dollars even to just arrest someone and bring them through [the system]. And I've heard the estimates are [hundreds of dollars] to keep someone at Rikers . . . I've definitely experienced judges refusing to make a non-jail plea offer for someone who's been arrested for jumping a turnstile."
According to a 2013 report from the New York City's Independent Budget Office, it costs about $460/night for a detainee to spend the night in Rikers.
Operation Spotlight, an initiative implemented under Bloomberg, has continued under de Blasio and focuses on the "group of offenders who commit a large portion of quality of life offenses in New York City." The eligibility criteria for those who are spotlight "recidivists" includes defendants who have been arrested (not convicted) for two previous misdemeanors in a 12-month period. In court, they often cannot receive a plea deal from the prosecution and will be sentenced to the top charge and the maximum jail sentence during the third arrest. With this practice, three fare-dodging arrests in a year could result in a sentence of one year in jail.
The main reason behind the unprecedented amount of MTA fare hikes in recent years is the transit authority's massive debt owed to Wall Street banks.
Like subway dancing, the penalty for fare evasion could also be a $100 fine or summons for violating MTA's rules. But as the New York Daily News discovered in their report on the racial discrepancies of issuing summonses: Whether or not people are punished with a summons or with jail, the result of broken windows policing is black and Latino people are disproportionately affected to egregious levels.
As arrests for fare evasion have surged in recent years, so have the fare prices for riding the subway. In the last eight years (2006-2014), the MTA fare has increased by 25 percent for a single fare and 47.4 percent for an unlimited metrocard. In the previous eight years (1998-2006), the MTA fare saw no increase for a single fare and just a 20.6 percent increase for an unlimited metrocard. The fare hike being planned in 2015 will be the fifth fare hike in in five and a half years. Most of these hikes were "almost three times the projected rate of inflation," according to comptroller reports.
The main reason behind the unprecedented amount of MTA fare hikes in recent years is the transit authority's massive debt owed to Wall Street banks. The MTA has continued to depend on loans issued by Wall Street banks to pay for upgrading subway stations instead of appealing more to city and state budgets.
In 2000, the MTA restructured its debt and delayed its repayment - with a plan that added $1 billion a year to its, at the time, $12 billion debt (in which Bear Sterns - who orchestrated the restructuring - received a "large share of the underwriting duties worth tens of millions of dollars," according to The New York Times).
The debt repayment - which many consider the result of an unsound plan - includes billions in interest payments and millions in underwriting fees to financial institutions packaging the bonds. Now, repayments to Wall Street continue to be one of the transit authority's highest expenditures, second only to the labor force - who have faced cuts and layoffs. The burden of the debt continues to land on the commuters with a 35 percent increase in fares since 2007.
The fare hikes are one part of a larger issue: the growing cost of living in New York City. Nearly half of New York City residents live near or at the poverty line.
In April 2014, the comptroller's office published a report on housing and the cost of living in the city. They found that while the median income had risen 34 percent only, the median rent in the city had risen 44 percent over 10 years. Meanwhile, the homelessness population in New York City hasn't been this high since the Great Depression. This is the climate in which NYPD Commissioner William Bratton has determined that low-level subway violations would be one of the NYPD's top priorities.
Behind the Arrests: Broken Windows Policing Strategy
These misdemeanor and violation subway arrests are central to New York Police Department Commissioner William Bratton's beloved broken windows policing strategy. The policing theory argues that arrests for small crimes and violations will stop larger crimes from occurring. Kelling & Wilson, the authors of the theory, use the argument that policing disorder will give people a sense of safety - which will lead to safer cities - an argument that conflicts with their own data.
The policing strategy often ends up getting implemented in specific neighborhoods and on specific populations (low-income, black and Latino) only. The result is often a disproportionate amount of black and Latino people arrested for petty offenses and violations.
Many people who make their living on the subway, are not convinced that broken windows policing actually works. When I explained broken windows policing to Daniel, who dances on the subway, he laughed. "That only works if I'm a criminal. The dancers are not the robbers. We're not criminals."
Some argue that broken windows policing creates the hardships that push people into more serious crime: Besnkheru who sings on subway trains, called broken windows policing a "ludicrous philosophy."
"Conditions [create] people's decisions," he told Truthout. "If you cut out the outlet for someone to dance, their choice could be . . . some type of crime [to make ends meet]."
When I asked Kenny, a subway dancer in the SoulWhat crew, if he thought broken windows policing will deter larger crime, he responded, "I honestly think it's going to be the opposite effect." Elaborating on his thought, he explained the economic factor of subway performance and crime.
"The people that subway perform or panhandle on the train; it's because they don't want to commit serious crimes . . . They're saying that they wanna crack down on the petty crimes to stop the major crimes? It's not going to happen. I don't think it's going to really affect anything. That's actually going to make things worse. The people that are going to get arrested for petty crimes, they gonna start thinking they should do a bigger crime . . . If you stopped me from [dancing], I have no money to feed my family. I can't feed myself. I can no longer live nowhere, so now I have to go out and rob somebody because now my back's against the wall."
Matthew Christian of Busk NY said the "lack of jobs in our economy and low wages" are "the real broken windows" in New York.