NYPD officers gathered outside Grand Central Station on May Day last year. Photo via Flickr user Timothy Krause
The expensive consequences of New York City's heavy-handed approach to policing protest have been on display lately. In December, the city finally settled most of the lawsuits stemming from its mass arrest of protesters during the 2004 Republican National Convention. Earlier this month, falsely arrested Occupy Wall Street protesters announced the largest settlement yet between participants and the powers that be, with the city poised to shell out nearly $600,000 in damages. NYC already paid $350,000 last year to settle a suit over its destruction of media equipment and Occupy's library during the 2011 eviction of Zuccotti Park, $82,500 this past December to settle an Occupier's suit claiming that police beat him up across the span of three arrests, and $50,000 the month before to settle a suit by people arrested on suspicion that they might later attend a protest.
Another settlement reached this year, and unreported until now, came in the case of Zachary Kamel, a 27-year-old from Massachusetts who was arrested two and a half years ago during an Occupy protest. Video evidence later showed that the sworn police accounts intended to justify his arrest weren't true, making Kamel only the most recent in a long list of New York defendants who have found themselves in jeopardy because of dubious testimony provided by cops.
On January 3, 2012, Occupy Wall Street protesters planned a day of actions to call attention to President Obama's annual signing of the National Defense Authorization Act, which enshrined in law the practice of indefinite military incarceration without trial.
After marching into the New York City offices of US Senators Chuck Schumer and Kirsten Gillibrand, about 100 activists concluded their protest with an action inside Manhattan's Grand Central Station at rush hour. The Metropolitan Transit Authority Police, whose jurisdiction includes Grand Central, weren't exactly thrilled at the prospect of a disruptive protest erupting in the middle of the station. Lauren DiGioia, a blue-haired occupier whose role in the action was to shout out an explanation to passers-by of what was going on, got arrested and hauled downstairs to the MTA precinct office.
Protesters followed DiGioia and the police downstairs. At a landing, the stairway split, turning left and right. Some protesters followed DiGioia and the police down the left-hand stairwell, but a line of police quickly blocked it off with their bodies. The protesters eventually found their way downstairs anyway. Kamel, upset at having seen DiGioia—who he was dating at the time—arrested and hauled off, mic-checked his feelings. "Is this the America you want to live in?" he shouted, the protesters around him echoing his words. "Where you express your First Amendment and they throw you out the door in cuffs?"
The question was hardly out of his mouth when Omeeta Lakeram, an MTA Police lieutenant, grabbed Kamel from behind. "I'm getting arrested," he narrated, still in the sing-song cadence of the People's Mic, as MTA officers dragged him by his neck into an area they had blocked off from the public.
"I basically went limp," Kamel says. "I got taken over there by four or five officers. One of them was a K-9 officer, and as he put his hands on me, his German shepherd, which was on a leash, lunged at my groin." Kamel turned his leg inward to protect himself, and the dog bit into his thigh, ripping his jeans.
"I had two canine puncture wounds in my thigh, and a scratch running down it," he says. "They pushed me up against the wall, and I said, 'What the fuck, your dog just bit me!'"
Kamel was taken to the MTA precinct offices in Grand Central, where EMTs decided he needed treatment for the dog bite. Around 10 PM, he was taken to Bellevue Hospital. "They basically put a Band-Aid on me," Kamel says. "I didn't think it was sufficient." After getting bandaged, Kamel was returned to the Grand Central precinct before being transferred to Central Booking downtown, where he sat in a cell in the Tombs for 19 hours awaiting arraignment. Finally, he was charged with obstruction of governmental administration in the second degree, as well as resisting arrest.
The basis for the charges against Kamel was an accusatory instrument—essentially, a statement of facts—sworn to by his arresting officer, one Josef Perez, a former Marine and Maryland State trooper who'd been an MTA police officer since 2001. In the document, Perez asserted that he "observed defendant attempt to walk down a stairwell inside of Grand Central Station that had been closed by several members of the New York City Police Department," and that he "repeatedly told defendant that said stairwell was closed and that defendant charged" toward the officers "in an effort to walk down said stairwell while stating in sub [sic] and substance: I'M ALLOWED TO WALK HERE. YOU POLICE ARE ABUSING YOUR POWER." The statement also said Kamel resisted arrest by kicking his legs and flailing his arms to avoid being handcuffed.
As it turned out, video footage shot during the Grand Central protest told a completely different story. For one thing, despite what the arrest documents suggested, Kamel didn't charge through the police line on the stairway landing. Instead, one video reveals that, finding his way blocked by police, he promptly turned around and descended the unblocked right-hand stairwell. In another video taken downstairs (see below), during Kamel's arrest, he doesn't kick his legs or flail his arms and shows no signs of resisting arrest. Also clearly shown in this video: The German shepherd, straining on its leash, sinks its teeth into Kamel's leg as the officer in charge of it shoves him against the wall.
In November 2012, when Kamel's lawyers showed the video evidence to the assistant district attorney handling his case, the prosecutor dropped the charges immediately, motioning for a dismissal. The case was built on police testimony that was clearly false. But though Perez's untrue statement had forced Kamel to endure months of anxiety and trial preparation, and sent prosecutors most of the way towards trying him, the officer suffered no consequence for his actions.
Kamel's case involved the MTA police, but there are plenty of examples of criminal cases against former Occupy participants unraveling when video evidence surfaces showing that NYPD officers haven't told the truth about the circumstances of their arrest.
In the very first Occupy protest case to go to trial, back in May 2012, Alexander Arbuckle, a student arrested while documenting a march, was shown by photographic and video evidence not to have been blocking traffic—despite the sworn testimony of his arresting officer. Two days later, the second Occupy protest trial ended the same way, as the story told in arrest documents unraveled in court. In another case, an occupier named Peter Dutro was arrested and charged with blocking the sidewalk on the basis of a sworn police statement. But as video camera footage and employee testimony from Amalgamated Bank later proved, Dutro had actually been conducting business inside the bank when police officers barged in to arrest him. Last March, in the first Occupy case to go before a jury, protester Michael Premo was found not guilty after video shot by a Democracy Now cameraman showed that, far from tackling cops, as police witnesses swore he had, he was actually tackled himself.
As in Kamel's case, none of the officers who swore to these false versions of events were charged with perjury or, for that matter, suffered any consequences of any kind.
Legal observers have speculated that the profusion of livestreamers, video cameras, and smartphones in protests like the now-defunct Occupy Wall Street created a new and unusual situation for police generally accustomed to being able to assert their own versions of reality. But most New Yorkers' interactions with police don't have to do with political protests, and there aren't so many cameras around. One way to address would be to follow the suggestion of Judge Shira Scheindlin, who, in her landmark ruling on the NYPD's stop-and-frisk policy, ordered the Department to look into putting body cameras on officers to record their interactions with the public. Other departments are already doing that, and many believe rolling cameras could check officers' temptation to lie. Cameras may not be enough to make a difference, though. When uproar over the out-of-control Albuquerque Police Department began to mount, officers there were made to wear lapel cameras. The result was less than transformative: In staggering numbers, officers conveniently failed to turn their cameras on, rendering the hi-tech solution useless. There are ways to hold police officers accountable for producing video, but clearly technology alone isn't the solution. With cameras or without, police culture has to change if the problem of testilying is to be addressed.
Back in 1994, the problem of police telling lies was bad enough that the Mollen Commission, convened to investigate NYPD corruption, called police perjury and falsification of records "probably the most common form of police corruption facing the criminal justice system." In some parts of the department, the commission found, false testimony was so common "that it has spawned its own word: 'testilying.'"
In the 20 years since the Molton Commission report, "testilying certainly hasn't gone away," says Jeffrey Fagan, a Columbia Law professor who specializes in police accountability. Theoretically, integrity bureaus inside NYC district attorney's offices are supposed to investigate police misconduct. The problem, according to Fagan, is that there is little incentive for DAs to come down on lying cops. "Prosecutors can't make a case without police officers, so they're caught in a bind. They're not about to challenge police officers over perjury too frequently."
Occasionally, NYPD officers are charged with perjury. Recent cases include William Eiseman, Michael Carsey, Adolph Osbeck and Bobby Hadid. But exceptions like these are rare, and hardly enough to counterbalance a system that effectively encourages police to lie.
An important part of this system are pre-formatted arrest affidavits like the UF-250 form used to justify stop-and-frisks, in which officers can check off boxes like "furtive movements" or "suspicious bulge" to justify their actions. "That's basically an invitation to lie," Fagan says. "Once you create a kind of a system that reduces the burden on the police officer to articulate certain circumstances, they're going to prevail."
Faced with a lengthy trial in which it will be simply be their word against that of a police officer, "defendants have every incentive in the world to say, 'What a pain in the ass,' take a plea, and walk away," Fagan says. "So there's no pushback on police not to do these kinds of things."
In 2008, police framed two Queens brothers, Maximo and Jose Colon, for selling cocaine. When the Colons sued, Federal Judge Jack Weinstein rejected the city's argument that there was no evidence that testilying was a widespread and condoned city policy.
"Informal inquiry by the court and among the judges of this court, as well as knowledge of cases in other federal and state courts, has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department," Weinstein ruled. "There is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct."
But even with a federal judge citing evidence that testilying has become routine, it's not clear where change might come from. On top of the civil rights issue, the millions of dollars hemorrhaged every year settling suits by victims of police misconduct provide a financial argument for reform. "The city resources, the taxpayer dollars that go to compensating people who have been the victims of police misconduct could be better spent strengthening protections against that misconduct," says attorney Rebecca Heinegg, who represented Kamel in his suit. Yet prosecutors have both practical and political reasons to think twice before declaring war on police dishonesty. Honest police officers who object to a culture of lies need look no further than the saga of Adrian Schoolcraft, who was extra-legally abducted after recording tapes of NYPD shenanigans, for a sobering cautionary tale. The Civilian Complaint Review Board, charged with investigating police misconduct, has been reluctant to consider the question of false testimony part of its purview.
"We have yet to find an effective avenue to get at this problem," concedes Sam Cohen, a lawyer who specializes in civil rights cases against the NYPD. There's a chance, he says, that the new NYPD inspector general who just took office last month might address it. Alternatively, if enough cases of testilying can be identified, it could lead to the appointment of a federal monitor.
"That's pretty far out and speculative," Cohen says. "But something will need to change the value proposition for the police on this. Unless something makes it less attractive to them to sometimes fudge their allegations, we're not going to change anything."
Zachary Kamel, for one, considers himself lucky that there was footage available to exonerate him. "If there hadn't been video evidence of the arrest, not only would I have probably never have been able to file a civil suit, but I might have been in jail," he says. In settling his suit against the MTA Police, Kamel was awarded $32,500. After legal fees and his lawyers' cut, he came out with just under $20,000. But he says the victory feels hollow.
"I got my check, I went home, and I thought, Wow, I don't feel like this is resolved at all," Kamel says. "I don't feel like this is a win for me or for anyone. The police don't get in trouble. They're not liable for their actions. Nothing changed. I know lots of people who think the police always tell the truth—how do you get people who think that way to see it's not true? How do you change the system?"