Expert Reports Conclude That Port Authority Police Are Still Arbitrarily Targeting New Yorkers for Lewdness Arrests Based on Assumptions About Their Sexual Orientation

The Legal Aid Society and Winston & Strawn LLP released two expert reports today in connection with the Cornell Holden et. al. v. The Port Authority of New York and New Jersey, litigation filed in 2017. The suit charges Port Authority Police Department (PAPD) officers with engaging in a pattern and practice of targeting, for lewdness and exposure arrests, men attracted to men who use restrooms within the Port Authority Bus Terminal (PABT).

The PAPD was previously found liable for precisely the same behavior in 2005 and the agency has since made no effort to correct its practices. It has failed even to hold the officers who committed the discriminatory acts accountable.

The two expert reports were completed by Jason Pierceson and John Pfaff. Pierceson is a Professor of Political Science at the University of Illinois Springfield whose research and publications focus on communities that have been marginalized based on their sexual orientation and gender identity. Pfaff is a Professor at Fordham Law School who has worked extensively in the field of criminal justice statistics.

Conclusion of each expert report:

Pierceson – “Arrests in 2014 were driven by a ‘quality of life’ initiative in the Port Authority Bus Terminal, utilizing relatively new PAPD officers on plainclothes details. Complaints about criminal activity for lewdness or exposure were few. In other arenas in which illegal activity, such as exposure or lewdness, was reported or observed, no stings or sweeps were initiated. Classic enticement techniques were used: officers standing at urinals next to a target of police profiling; officers making eye contact with targets of police profiling; if targets of police enticement respond in any way, or even if they do not, they are arrested. All of the elements of the 2014 initiative reflect historic patterns of discriminatory policing against men perceived to be gay or bisexual, and/or gender non-conforming, and/or men who have sex with men.

Pfaff – “The arrests for public lewdness appear to be idiosyncratic, in potentially important ways. They appear to take place at different times of the day than other arrests—and at times when one would expect public masturbation to be less frequent, not more (morning and evening rush hours). Those arrested also tended to be older and less likely to be Black than those arrested for other offenses. These results certainly suggest that the spike in public lewdness arrests was the result of intentional policy choices, not incidental to routine police patrols and stops. The arrests for public lewdness were driven by a small cohort of officers, with just five officers making 70% of the public lewdness arrests in 2014. There does not appear to be any policy barring such behavior, nor any meaningful oversight to prevent such issues from arising.”

“Despite an almost identical case in 2005 where the jury awarded a punishing verdict to the Port Authority, in 2014 its Police Department again arbitrarily targeted New Yorkers for lewdness at Port Authority Bus Terminal restrooms based on their appearance,” said Tina Luongo, Attorney-In-Charge of the Criminal Defense Practice at The Legal Aid Society. “We look forward to pursuing justice for the Plaintiffs and an injunction to finally end the practice of plainclothes officers pretending to be flirtatious patrons at adjacent urinals and targeting men they perceive to be attracted to other men.”

“We are confident that the evidence that has emerged throughout the course of this case, from police officers, from experts, and most importantly from victims, will result in the Port Authority Police Department once and for all enacting a necessary and long-overdue change. We are committed to making sure that all individuals who pass through the Port Authority are treated with dignity and respect by forcing the PAPD to end their appalling discriminatory practices,” said Winston & Strawn Vice Chairman Michael Elkin.