PHOTO | SCOTT LYNCH
As the racial disparity in marijuana arrests continues, and with a state report recommending the legalization of marijuana set to drop this week, Mayor Bill de Blasio announced on Sunday that he would direct the NYPD to stop arresting New Yorkers for smoking weed in public, and create a task force to prepare the city for legalization.
“With marijuana legalization likely to occur in our state in the near future, it is critical our city plans for the public safety, health, and financial consequences involved," the mayor said in a statement, first reported by the Daily News.
"While I still have real concerns we must work through, it isn’t difficult to see where this is headed and any responsible policymaker must prepare for that eventuality. My focus now will be helping to craft the critical regulatory framework that must come before legalization is realized.”
According to the New York Times, during the first four months of 2018, around 4,000 people were arrested for marijuana possession, and 89 percent of them were Black or Hispanic.
In his testimony before the City Council last week, NYPD Commissioner James O'Neill rejected the premise of the reports in the Times, WNYC, and the Daily News, that marijuana arrests were racially motivated, and pointed out that those arrests have decreased by 38 percent since 2013.
"In the case of smoking marijuana in public, we have evaluated our data and NYPD executive staff members know they must ensure that arrests conform to the mission and vision of this police department—that the enforcement will enhance quality of life or bring about disorder [control] or crime-control," O'Neill said.
The Mayor's Office confirmed that broadly, police officers will be directed to issue criminal violations—$100 for a first offense—for public marijuana consumption instead of making misdemeanor arrests, and that the task force will examine the kind of discretion the police will have to make arrests for smoking marijuana in public.
Some states that have legalized marijuana, like Washington, make public smoking a civil offense, much like having an open container of alcohol.
Jeffrey Fagan, a law professor at Columbia University who specializes in police accountability and criminal law, said the mayor's policy may cause a drop in arrests for marijuana smoking, "but even with a drop we’ll still see significant racial disparities, and we will until they totally decriminalize public burning."
Fagan points to the fact that there are more marijuana arrests in neighborhoods with more people of color, despite other neighborhoods that have the same amount of 311 and 911 calls complaining about marijuana smoke. The NYPD contends that's because those neighborhoods with more marijuana arrests have more violent crime and therefore more police officers.
"High crime area" was also one of the top justifications for why NYPD officers stopped and frisked five million New Yorkers, most of them Black and Hispanic, over the course of a decade. Roughly ninety percent of those stops ended with no arrest or charge, and were often justified with vague, flimsy reasons, like "furtive" movements.
"Public order rationale for police action, whether it be a stop and frisk or a marijuana arrest or Broken Windows arrests, has always been invoked far more often in areas that the police believe to be high crime areas," says Fagan, who was an expert witness in the stop and frisk case in which the practice was declared unconstitutional. "But research shows that police officers believe areas to be high crime areas that aren’t necessarily high crime areas, but they do have a concentration of Black and Hispanic people."
Darius Charney, a senior staff attorney for the Center for Constitutional Rights, and one of the lawyers who successfully litigated the stop and frisk case for the plaintiffs—Floyd v. City of New York—said he felt a sense of "deja vu" when he read the stories about racial disparities in marijuana arrests.
"It really is the racial composition of the neighborhoods that is driving the marijuana arrest activity which is just like it was with stops," Charney says. "The equal protection clause of the 14th Amendment says that everyone has to be treated equally under the law. If [the police] are overwhelmingly enforcing their marijuana laws against one ethnic group or two ethnic groups, and not others, that would clearly violate the 14th Amendment."
Jonathan Moore, another civil rights attorney who litigated the stop and frisk case for the plaintiffs, said that there is a "striking similarity" between the NYPD's justification for stop and frisks and their justification for marijuana arrests.
"The rationale sounds a lot like Floyd—we’re only stopping people who are committing crimes and therefore we’re not racially profiling," Moore said. "That was a fallacy."
Moore says that class action federal lawsuits like Floyd are expensive and difficult to bring. Asked if the city is vulnerable to a similar suit based on the racial disparity of marijuana arrests, Moore replied, "I’m sure someone’s got it in the works."
"We have to know more about the facts of each arrest. Are the arrests based on observations? Or the discovery of marijuana after a search?"
Timothy Rountree, Legal Aid's attorney-in-charge for Queens County, said the police department's numbers for marijuana arrests can be "misleading."
"Police often say marijuana was in public view when it wasn’t to form their false basis for probable cause. This in itself is a form of abuse because facts are made up on the street to justify the stop," Rountree said.
The NYPD has not yet responded to our request for comment.
The Mayor's Office said that the threat of litigation against the racial disparity in marijuana arrests was not a consideration in de Blasio's policy announcement.