The NYPD has taken a two-pronged approach to policing the city's vast subway system: Cops can go easy on first-time offenders, but cuff others known as "transit recidivists," a label straphangers can earn in several ways.
But advocates argue that policy, based on a "collection of past police suspicion," violates New Yorkers' rights and exacerbates racial disparities in law enforcement.
"The NYPD is not looking at rap sheets, it's not looking at conviction records," said Zohra Ahmed, a staff attorney at the Legal Aid Society. "It's looking at past enforcement actions."
Racking up and ignoring at least three summonses for transit violations such as turnstile-jumping makes one a transit recidivist. So does an arrest for a felony or misdemeanor in the subways in the last two years, or at least three arrests in the transit system for low-level violations in the last five years.
The policy isn't limited to underground crimes. Any arrest in the city in the last four years for a sex crime, weapons crime or any of the seven "major" crimes, such as murder, rape or robbery, also makes one a transit recidivist, according to NYPD policy.
The Police Department tracks these arrests in a database that cops check when they stop someone for violating transit rules, like skipping a fare or walking between train cars.
Anyone who's in it gets cuffed, as do people with active arrest warrants or who can't be identified. Others can get a summons or a warning.
Walter Vargas challenged the transit recidivist policy in a 2011 lawsuit after his 2010 arrest for walking between subway cars on an uptown 6 train.
Police cuffed him because he'd been labeled a recidivist; he also had marijuana with him, according to court papers. A state Supreme Court judge ruled against him in the lawsuit, but he's appealing.
Eight groups, including the Legal Aid Society and the Community Service Society, plan to file a friend-of-the-court brief in the case Thursday arguing the policy may violate a state law that seals certain criminal records.
The NYPD's database doesn't consider what happens after the arrests that get someone labeled a transit recidivist, said Ahmed, one of the brief's authors.
That means someone could be cuffed simply because they'd been arrested before, even if they were never convicted of the charges — in which case the records should be shielded from view under the state's sealing laws, Ahmed said.
"How is the NYPD assuring us that the arrest information it's relying upon don't fall into the category of prior dismissed cases?" Ahmed said.
The policy also creates an "unreliable feedback loop" that builds on existing racial disparities in policing, advocates argue.
Black and Latino New Yorkers are arrested at disproportionate rates and are more likely to get a summons rather than a warning, the brief says. The trend extends to the subways — a Community Service Society study found fare evasion enforcement in Brooklyn hits poor black neighborhoods the hardest.
The transit recidivist policy "bake(s) in" those disparities because it "carries past racially biased decisions into the future, trapping a class of people in an endless cycle of arrests," the brief says.
Vargas' original lawsuit argued the policy violates the state constitution by allowing cops to arrest someone "based on a hunch," said Vargas' lawyer, Martha Rayner.
Rayner compared stopping someone in the subway to pulling over a driver. "So long as the paperwork is in order and there is no reason a warning or ticket can't be issued … the motorist must be sent on his/her way," she said in an email. "Subway passengers should be treated no differently."
Vargas' suit isn't challenging the piece of the policy that requires cops to arrest people on probation or parole for transit offenses.
State Supreme Court Justice James d'Augste rejected Vargas' argument last year, saying cops were within their authority to arrest Vargas for walking between cars and then check his background. And unlike traffic offenses, he ruled, the law allows people to be jailed for transit crimes.
But Rayner said she thinks the advocates' new brief "shines a light on another troubling aspect of this case" as the Appellate Division court considers it.
The city's Law Department declined to comment on the brief. But city lawyers have dismissed Vargas' arguments in court papers, saying they fail to recognize the link between the transit recidivist policy and the city's "interest in maintaining the safety of the transit system."
"We're confident that the appellate court is going to rule in our favor," Lawrence Byrne, the NYPD's deputy commissioner for legal matters, said at a news conference this week.