Lawsuit Accuses Police of Ignoring Directive on Marijuana Arrests

Nine months ago, Police Commissioner Raymond W. Kelly issued a memorandum directing police officers not to make misdemeanor arrests for possession of small quantities of marijuana discovered when suspects are ordered to empty their pockets in stop, question and frisk encounters.

But police officers have continued to charge New Yorkers with misdemeanor crimes — rather than issuing them tickets for violations — for possession of small amounts of marijuana despite Mr. Kelly’s directive, according to a lawsuit filed on Friday by the Legal Aid Society.

“It’s certainly a sad commentary that the commissioner can issue a directive that reads well on paper but on the street corners of the city doesn’t exist,” said Legal Aid’s chief lawyer, Steven Banks.

The 28-page lawsuit, filed in State Supreme Court in Manhattan against the city and the Police Department, seeks a court order declaring the practice illegal under state law and prohibiting officers from making such arrests.

The Police Department would not immediately comment on the lawsuit.
Legal Aid lawyers brought the suit on behalf of five New Yorkers who, they say, were victims of “gotcha” police tactics. The five men were all arrested since mid-April, four in Brooklyn and one on Staten Island; they were charged with misdemeanor possession after small amounts of marijuana were found on them during police stops. In each case, the marijuana became visible only after officers searched the men or asked them to empty their pockets, the suit says.

Under state law, possession of marijuana is a misdemeanor offense when the drug is being smoked or “open to public view.” Possession of less than 25 grams of marijuana out of public view — for example, inside an individual’s pocket or backpack — is a violation, warranting only a ticket.

“These five individuals are New Yorkers who were essentially victimized by unlawful police practices,” Mr. Banks said. “The lawsuit is aimed at stopping a pernicious police practice, which is harming thousands of New Yorkers a year and clogging up the court system with one out of seven criminal cases and diverting resources and attention from more serious criminal matters.”

One plaintiff, Juan Gomez-Garcia, said he was waiting for a food order outside a Kennedy Fried Chicken restaurant in the Bronx on May 16 when an officer approached, began to question him and asked if he had any drugs on him. Mr. Gomez-Garcia, 27, said that after he admitted to the officer that he had marijuana in his pocket, the officer reached inside the pocket and removed a plastic bag containing a small amount of the drug.

He was arrested and charged with “open to public view” possession for having marijuana “in his right hand.” He spent about 12 hours in a jail cell and was let go after he pleaded guilty to a disorderly conduct violation, according to the lawsuit.

In New York City, many of the tens of thousands of misdemeanor marijuana arrests made each year have been a result of stop-and-frisk encounters in which drugs hidden on a person are brought into public view only because of a police officer’s frisk or instructions that a person empty his or her pockets, according to lawyers in the suit.

In an effort to end these prosecutions, Gov. Andrew M. Cuomo sought this month to decriminalize small amounts of marijuana in public view. The Legislature did not act on the proposal.

Critics of the Police Department’s enforcement policy said that police officers have been willfully misinterpreting the state’s marijuana laws for more than a decade to produce more arrests. Earlier this month, testifying before the City Council, Mr. Banks presented statistics that he said showed that officers had also been ignoring Mr. Kelly’s order, issued in September 2011.

In August 2011, 4,189 people were arrested in New York City for misdemeanor marijuana possession, Mr. Banks said. While the arrests dipped below 3,000 in December, the “decline was only temporary,” he said, adding that by March, the number of arrests had risen to 4,186