A protester taken into custody by NYPD during the 29 Aug 2004 protest against the Republican National Convention in New York City. Source : Progress New York/Archive Photograph

At SDNY, decades of looking the other way as commended partner NYPD continue to engage in a pattern or practise of violations of Constitutional and civil rights

An attorney making her second turn through the revolving door between Government and big business can hold the NYPD accountable. But for decades, no legal eagle at SDNY has dared to do it. Will Audrey Strauss ?

By Progress New York Staff

Only days into her backdoor promotion to head the Nation’s most powerful prosecutor’s office, Audrey Strauss moved to secure the global headlines-making arrest of socialite Ghislaine Maxwell, a former paramour of the late financial advisor, Jeffrey Epstein. Ms. Maxwell was charged with conspiring with the late Mr. Epstein to sexually abuse minors. For one day, at least, Ms. Strauss had telegraphed that she meant to continue her office’s pattern of charging one-off bad actors for serious crimes, the kind of arrest that would play well in the media.

But, in a check on the failings of Ms. Strauss’s office, Ms. Maxwell had to be held in the Federal jail of another jurisdiction, a reminder that Ms. Strauss’s predecessor was unable to guarantee the safety of Federal defendants, in particular Mr. Epstein, whose life ended under mysterious circumstances in a Manhattan Federal detention centre under the negligent watch of her office. Yes, Ms. Strauss made a high-profile collar, but the defendant would have to be jailed in a more secure, albeit decrepit, jail — for her own safety.

The concern for defendants’ safety when they are remanded to custody reveal some of the issues facing Ms. Strauss as she takes on the reigns of a Federal prosecutors’ office that self-aggrandises itself as the most important in the Nation, namely, how do Federal prosecutors regard the rights of individuals facing arrest, whether on warrant or not. Reunions of former Manhattan Federal prosecutors have taken place in the plush Plaza Hotel, a setting of luxury more fitting to the corrupt Government and corporate criminals charged by the office than the lowly-paid public servants that work out of two unwelcoming offices : One St. Andrew’s Place, sharing an out-of-the-way plaza with the New York Police Department, or NYPD, and 86 Chambers Street, an unimportant building crammed with office workers in the dark caverns of Downtown Manhattan. The dichotomy of feast or famine facing the prosecutors of Ms. Strauss’s office, known formally as the U.S. Attorney’s Office for the Southern District of New York, or by its initials SDNY for short, is not lost on the lawyers, who work on complex civil and criminal cases that give SDNY its caché. Whilst the Federal prosecutors work for low wages and no perks, their private sector counterparts earn multiples in salary and enjoy perks customary at the “White Shoe” law firms that serve Wall Street and America’s corporate élite. Many prosecutors exit public service and enter the plush private sector through the lucrative, revolving door of Government that exists, even at SDNY.

When Ms. Strauss’s predecessor, Goeffrey Berman, was being forced out as the top Federal prosecutor in Manhattan by U.S. Attorney General William Barr, Mr. Barr alluded to a sensibility inside the U.S. Department of Justice, or DOJ, that top Government lawyers consider building a “book of business” in civil cases before making the profitable move back to the private sector. After Ms. Strauss’s first stint as an Assistant U.S. Attorney, she worked herself up into lucrative partnerships at prestegious law firms Fried Frank and Mudge Rose before eventually being named as general counsel for aluminum conglomerate Alcoa. After that turn through the revolving door between the SDNY and big business, Ms. Strauss has returned. Like others before her, she can position herself to profit handsomely from her time atop SDNY. She is married to a successful attorney, and, through her son, she is married into the Cuomo administration. For all the noblesse oblige that the legal industry wraps around the jobs of Federal prosecutors, there’s a lot of self-interest at work, too.

SDNY has the power and discretion to launch a pattern or practise investigation into the NYPD, just like they can for any Municipal Agency in New York City.

For months, there has been a heightened tension between the NYPD, the Government officials with varying forms of power or discretion over the NYPD, and the general public, particularly New York’s activist community and communities experiencing relative disadvantage. Tensions have existed for decades (in particular over unprosecuted homicides by police), but recent pressures first began to escalate following the police role in enforcing social distancing and mask-wearing during the confinement ordered after the Coronavirus outbreak was detected in New York City. In one instance, in early May, police officers had reportedly caused physical injuries to a public housing authority employee after the employee complained about how police conducted a social distancing action in the East Village. Video showed that an NYPD officer had placed his knee down over the body of a man stretched face-down on a sidewalk. That and other, alleged acts of misuse of power by the police, triggered reöccuring complaints that NYPD officers engage in brutality during low-level crime arrests without accountability.

Against that backdrop of tension, a national public uprising took place, with New York City as one focus, after police in Minneapolis killed George Floyd during an arrest in late May. During the ensuing protests, NYPD were video-taped driving vehicles into crowds of peaceful protesters, shoving activists to the ground, and indiscriminately discharging pepper spray onto protesters, amongst other accusations of misconduct. In some confrontations, the NYPD would make indiscriminate arrests with allegations that the police were deliberately targeting legal observers, who are lawyers acting as peace-keepers during protest assemblies. Journalists have complained that the NYPD and the police departments of other cities have targeted the media for brutality or arrest in connection with their First Amendment-protected jobs as reporters. Because the George Floyd-inspired anti-racism and anti-police brutality protests have taken place over the course of several months, the due process disposition of many of the low-level arrests for unlawful assembly and disorderly conduct made by the NYPD during those protests ended with a determination by the Manhattan District Attorney’s Office not to prosecute those arrests “in the interest of justice.” In the past, the NYPD have taken innocent individuals into custody on what has been described as “an indiscriminate mass arrest policy” by City officials, leading to large settlements against the Government of the City of New York, including one class action case that cost $18 million to settle charges of civil rights abuses connected with the mass arrests made during the 2004 Republican National Convention. Later, the NYPD again made mass arrests during the Occupy Wall Street protests, which were later almost entirely dismissed.

When a Municipal Agency has been revealed to be engaged in a pattern or practise of routine violation of Constitutional rights, civil rights, or civil liberties, that Agency usually becomes the subject of a pattern or practise investigation by the U.S. Attorney’s Office.

A Federal investigation begun for suspected Agency acts under the administration of then-Mayor Rudolph Giuliani (R-NYC) eventually led to the appointment of a Federal monitor to oversee the New York City Department of Environmental Protection after the Agency admitted to violating Federal clean water laws. During the administration of then-Mayor Michael Bloomberg (R-NYC), the Feds opened an investigation and appointed a Federal monitor to oversee the end of discrimination in hiring practises at the Fire Department of the City of New York. Federal monitors also supervise aspects of the New York City Department of Correction (in particular, Rikers Island), the NYPD over its use of stop-and-frisk in an unconstitutional manner, and the New York City Housing Authority over its lead poisoning scandal. The NYPD is also subject to Court supervision in the Handschu case as it relates to the infiltration and unlawful investigation by the police of radical groups. But the repeated civil rights abuses by the NYPD when it comes to civilian assemblies have never come under Federal review, despite repeated patterns or practises of disrupting civilian assemblies, particularly those that have sought to petition the Government for justice or reforms, or to communicate grievances.

The NYPD have engaged in misconduct allegedly aimed to disrupt, in recent times, the 1998 Matthew Shepard memorial march, the 2002 World Economic Forum, the 2003 anti-war protests, the 2004 Republican National Convention, the 2011 Occupy Wall Street movement, the 2014 police killing protests, and the 2020 anti-racism protests. (During one night of protests (on the evening when a grand jury decision was made not to indict the officer, who choked Mr. Garner to death), over 80 people were arrested, even though the Wall Street Journal described the protests as “largely peaceful.”) Though the NYPD have repeatedly demonstrated patterns or practises of making mass arrests without establishing probable cause, engaged in police brutality against demonstrators, discharged chemical weapons like pepper spray, trapped protesters in pens, and charged horses or motor vehicles into crowds, the NYPD have never had to answer for such Constitutional rights, civil rights, or civil liberties violations. Because of how much SDNY is venerated by the legal industry, any Federal review of the NYPD would be conducted by the prosecutors in Acting U.S. Attorney Strauss’ office.

In recent months, the NYPD have also expressed hostility toward public officials.

After two prior police commissioners stepped down following anti-racism and anti-police brutality protests during the earlier years of the de Blasio administration, the current NYPD commissioner, Dermot Shea, has been navigating similar controversies with better success. In response to the George Floyd protests, Commissioner Shea has weathered criticism over repeated accusations of police brutality, which culminated in calls to defund the NYPD. In the wake of such calls, Commissioner Shea, as the top Municipal law enforcement official, has attempted to shift the narrative around policing from one of police brutality to official neglect of quality of life. He has done so by openly challenging Government officials (calling them “cowards” for not fighting an uptick in crime amidst the economic collalpse following the Coronavirus outbreak). His top uniformed underboss, Terence Monahan, engaged in a profanity-charged verbal confrontation over the NYPD’s brazen attempt to seize for itself 500,000 hospital-grade face masks that the Municipal department of health was planning to distribute to hospital and healthcare workers in dire need of personal protection equipment. During the Coronavirus pandemic, police union officials openly lost control over their stoicism and engaged in emotional outbursts on social media, attacking civilian officials — calling the then Municipal health commissioner a “bitch” over her objection to the NYPD’s seizure of the face masks and calling a Municipal legislator a “first class whore” for having called for a probe into allegations that the NYPD were engaged in a work-slowdown following policing reforms and other attempts at increasing oversight and accountability for police brutality and misconduct, all of which police officers were rejecting.

In the face of the appearance of insubordination by the NYPD commissioner, Mayor de Blasio has countenanced the police commissioner’s challenges to his power and authority to set policing policy, because of the “fraught relationship that Mr. de Blasio has maintained with the Police Department throughout his tenure,” according to a news analysis published by the New York Times, which added that the mayor has even “praised” Commissioner Shea instead of heeding the calls by those demanding “Commissioner Shea to resign or be removed.”

Acting U.S. Attorney appears to be rejecting oversight of the NYPD.

Instead of fulfilling on the noble function of SDNY to speak for the powerless, Acting U.S. Attorney Strauss apparently takes the same, limited view of police prosecution as her predecessors. For example, months after Eric Garner had been choked to death by an NYPD officer, bringing to the fore the problem of unprosecuted homicides by the police, Preet Bharara, perhaps the most famous, recent U.S. Attorney at SDNY, rejected calls to appoint a committee of prosecutors to investigate the NYPD for systemic misconduct.

In the face of relentless evidence of systemic misconduct by the NYPD in response to the George Floyd-inspired protests, for example, Acting U.S. Attorney Strauss chose to, instead, act as a functionary : She brought charges against two individuals for destruction of an NYPD vehicle. Rather than challenging the patterns or practises of police brutality and the allegations of the violations of each of Constitutional rights, civil rights, and civil liberties, the top Federal prosecutor in Manhattan chose to press charges against activists. By chosing to focus on the police as victims, Acting U.S. Attorney Strauss was telegraphing SDNY’s sensibility about NYPD, namely, police brutality was not going to be investigated. SDNY are basically acting like they are powerless to hold the NYPD to account for their patterns or practises of brutality, civil rights violations, and the commission of homicides.

The U.S. legal system is based on impartiality, a requirement in order for people to feel like justice can be administered fairly.

To ensure the disposition of justice in the legal system, top law enforcement officials are supposed to remain impartial in order for people to feel that any legal process that resolves disputes or that applies the law was fair. As a result, law enforcement, including SDNY, are supposed to refuse to comment on matters of public policy, for such comments may reveal biases. According to information obtained by Progress New York, some top law enforcement officials will go to great lengths to avoid addressing media reports about Agency challenges, since officials may be forced, for example, to confirm speculation of biases.

In times when top law enforcement officials have intervened in public policy debates, such interventions have been viewed as distasteful lobbying (as when it was revealed that the DOJ and the the national membership group of Assistant U.S. Attorneys had been lobbying Congress during the Obama administration against expanding Government transparency). The unseemly acts of lobbying by law enforcement betrayed the public duty to remain impartial in the face of controversies that would reveal prejudices by law enforcement officials. In that instance, the lobbying revealed that law enforcement opposed Government transparency, even as law enforcement Agencies were coming under heavy criticism during the Obama administration for openly violating laws requiring Government transparency. For example, in Court filings, the DOJ under the Obama administration had claimed that the Nation’s top law enforcement Agency could comply with Federal open records laws at its sole discretion. The revelation was made during open records litigation centered on the release of Government records over the prosecution of activists, arguments that one Federal magistrate judge in Brooklyn refused to discredit.

At the same time, if Federal prosecutors continue to refuse to take-up any pattern or practise investigation of the NYPD, then they are refusing to remain impartial in the face of almost non-stop accusations of systemic police misconduct. The absence of a pattern or pattern investigation is communication in its own right, namely, a condoning of such misconduct. It’s an expression of partiality — in defense of the NYPD without any care or concern for due process for the victims of police brutality.

In recent months (overlapping with the final months with Mr. Berman as U.S. Attorney and the first months of Ms. Strauss as Acting U.S. Attorney), the NYPD were reported to have been engaged in using excessive force (including one officer pressing his knee on the neck of a person laying facedown on the sidewalk), driving vehicles into throngs of protesters, selectively targeting protesters based on their political ideology, and using anonymous rendition at least once to take one activist into custody. Throughout, neither the Manhattan U.S. Attorney nor the Brooklyn U.S. Attorney, the latter a prosecutor with parallel power but less media attention, have checked the NYPD over allegations of patterns of abuse. For several reports published by Progress New York, the press offices serving then U.S. Attorney Berman in Manhattan and then U.S. Attorney Richard Donoghue in Brooklyn declined to answer interview requests or comment for reports about accusations of NYPD misconduct.

Though Federal prosecutors have the power and authority to launch pattern or practise investigations, prosecutors from SDNY have a pattern or practise, in their own right, of solely arresting and charging one-off law enforcement agents for crimes, mainly corruption. On the rare occurrence when law enforcement officers are charged with crimes, those cases tend to involve correctional officers at Rikers Island over marijuana sales or NYPD officers over fraud.

In the face of the absence of any prosecutorial response to the crisis of Constitutional and civil rights violations by the NYPD, the victims of recent reports of NYPD abuse of power have been moved to begin litigating their accusations in Court in attempts to seek justice, according to a report published by Gothamist. Some advocates of greater police accountability say that the kind of disinterested oversight by Federal officials exists, because there is too close of an institutional relationship between SDNY and the NYPD. Indeed, in media releases announcing some significant arrests, Acting U.S. Attorney Strauss continues to refer to the NYPD as a partner whom she commends, at times calling them “outstanding,” even though that partner has been accused of serially violating the rights of citizens. The inability of institutions to police themselves is not foreign to Federal prosecutors, because they routinely must investigate and prosecute corruption on Wall Street, for example, despite almosta series of laws and oversight bodies tasked with self-regulating compliance over the financial securities industry. Yet, because Federal prosecutors have such a close role with the NYPD, they cannot see, or are unwilling to admit, that SDNY, too, have become a captured regulatory authority of a body in severe need of oversight.

As Ms. Strauss has begun to flex the docket of the career Federal prosecutors in her charge, she’s instead chosen to ignore cases of violations of Constitutional rights, civil rights, and civil liberties by the police and, instead, she has focused on charging activists for crimes that stem from the formation of public assemblies that have sought to petition the Government for justice from state-sponsored forms of discrimination and violence. For example, the NYPD allegedly used facial recognition technology to surveil and identify Black Lives Matter activists, even though such technology involves collecting, storing, and using dragnet information, likely without first establishing individual probable cause.

A deliberate suspension of belief, or a callous disregard for the victims of the NYPD ?

Key to how Federal officials, Mayor de Blasio, and New York City Councilmembers escape public scrutiny over their failure to oversee the NYPD is that they pretend that they don’t know what is going on. That was the case when the NYPD mobilized an unnecessary show of force to attempt to take an activist into custody, raising criticism which Mayor de Blasio deflected by claiming ignorance. In the past, the New York City Council has been singled out for criticism for likewise abdicating their responsibility to oversee the NYPD (for example, in respect of controversial Muslim surveillance by the NYPD). It’s not a stretch to view Ms. Strauss’s silence on the issue of abuse of power by the NYPD as her invoking similar plausible deniability.

It would be one thing for Acting U.S. Attorney Strauss to ignore individual activists or activist groups, after all her office thinks so much of itself that there is method for her office to be accountable to average citizens, not even in the courtroom. But the “Do Not Disturb” sign proverbially hanging outside SDNY offices apply to others, too. It can be shown that she’s also ignoring important civil rights and humanitarian groups. Three times over the course of a decade, the New York Civil Liberties Union released reports about the failure of oversight in the face of continuous NYPD misconduct. The reports provided analysis in respect of the 2003 anti-war protests, the 2004 RNC protests, and the release of 16 years’ worth of Internal Affairs Bureau documents. Of particular note, the protest-related reports highlighted criticism of the NYPD’s pattern or practise of using pens or nets to confine or trap protesters, the discharge of pepper spray, and the charging by police into crowds — complaints about which were raised again in 2020.

This year, Human Rights Watch released a damning report about the NYPD’s abuse of powers during one of the anti-racism and anti-police brutality protests. “The months-long investigation from the nonprofit concludes that the NYPD violated a host of international human rights laws, including protections against the excessive use of force, violation of the rights to peaceful assembly, arbitrary arrests and detentions, and the cruel and degrading treatment of detainees,” according to an analysis of the report published by Gothamist. Were SDNY supposed to be a reflection of the highest ideals of the legal profession, then the fact that its U.S. Attorneys continue to ignore the alarming reports coming from esteemed civil rights and humanitarian groups represent a betrayal of SDNY’s own self-professed ethos to act for the benefit of those less privileged. It’s also a big Bronx cheer from Government attorneys, who have the privilege of cashing in from their work, to lowly-paid nonprofit attorneys, who are unafraid to police the police.

The NYPD reportedly made over 2,400 arrests of activists from 28-May to 7-June, according to one press report. Jeffrey Emdin, a lawyer representing some of the civilian protesters-litigants seeking justice in Court has predicted that he expects some of the Municipal prosecutors to begin dismissing the cases against activists. If that is the case, then that would appear to confirm that the NYPD continue to engage in a pattern or practise of making unlawful and indiscriminate arrests of civilians, particularly in the wake of the George Floyd-inspired protests, without first establishing individual probable cause.

For this report, the press office supporting Acting U.S. Attorney Strauss has repeatedly ignored press inquiries or have declined to answer questions submitted in advance. Her press office won’t even disclose whether Acting U.S. Attorney Strauss attended a 21 August meeting with U.S. Attorney General Barr and NYPD Commissioner Shea on the subject of political extremists. President Donald Trump (R), who has seen four different U.S. Attorneys head SDNY during his first term in office, can dismiss U.S. attorneys without cause. But he has reason to remove Acting U.S. Attorney Strauss. She is reportedly tolerating the violation by Mayor de Blasio of the Settlement Agreement with the Municipal public housing authority, to the detriment of public housing residents. But President Trump won’t remove her, according to one political analysis of the situation. President Trump has been shown to be advancing a judicial agenda that disregards the U.S. Constitution, civil rights, and civil liberties. He also seeks to normalise White nationalism and retaliation against political dissidents. It cannot go overlooked that NYPD unions, members of which SDNY refer to as their commendable partners, have endorsed President Trump’s reëlection. President Trump and the NYPD share many sensibilities, and their relationship with SDNY are apparently not undermined, in spite of the occasional, high-profile bad actor arrests SDNY may make that may reflect poorly on them.

Speaking of the two-party political system that cannot respond to crises, political talk show host Jimmy Dore has said, “The Government has siezed up in America. It can no longer respond, rationally, to problems.”

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