22,000 Were Arrested for It, And It Was Perfectly Legal

NYPD Escort Handcuffed Man, Photo by Flickr/Runs With Scissors

Why did it take almost 30 years to stop the NYPD from arresting thousands of poor, mostly black, people under three void laws?

n January 2004, Eddie Wise was sitting in the holding pen of Bronx Civil Court, waiting to be arraigned after his latest arrest, when he spotted Lisa C. Cartier Giroux, a lawyer he knew from Bronx Defenders, a non-profit organization that represents the indigent. Wise got Giroux’s attention and, from his holding pen, began proclaiming his innocence. Earlier that month, the 44-year-old homeless African-American man had been arrested on Fordham Road in the Bronx. His arrest report accused him of “engaging numerous pedestrians in conversation with his hand out requesting money.” The exact charge facing Wise, who concealed his slight build beneath hoodies and baggy jeans and covered his cornrows with a do-rag, was a violation of New York’s law against loitering “in a public place for the purpose of begging.” In his mind, though, he wasn’t loitering at all. He was working. You see, Wise titled himself a professional street hustler even though most of us would call what he did for a living begging. He was the guy lingering in front of the liquor store asking you for a “reasonable donation” on your way out, the guy promising to “protect” your car from vandals in exchange for a “tip.” Despite a recurring drug problem, he was able-bodied. He’d held regular jobs. Begging simply allowed him to make his own hours and be his own boss.

Giroux listened to Wise and agreed to look into it. When she went back to Bronx Defenders, she ran a quick computer search and learned something surprising. Wise’s hunch that he had been illegally arrested was right, albeit for a different reason than he suspected. The loitering law Wise had been arrested under some twenty times in two years had been ruled unconstitutional nearly 15 years earlier. Back in 1990, a group of fed-up panhandlers from Tompkins Square Park in Manhattan’s East Village had convinced a court that if the Salvation Army could loiter while soliciting funds, on the street or door-to-door, so could they. The court struck the law down.

Five months after meeting Wise, Giroux was able to get all his loitering charges thrown out, including two he accumulated after they met. But now that Wise knew he had been falsely arrested, he wasn’t satisfied with the dismissals. He wanted the city to pay for having abused his rights. Giroux handed Wise’s case over to McGregor Smyth, who runs Bronx Defenders’ civil unit. Smyth in turn enlisted his fellow Yale Law graduate Katie Rosenfeld, who worked at Emily Celli Brickerhoff & Abady, one of the country’s leading civil rights firms.

Attorneys at Bronx Defenders had heard of arrests like Wise’s and seen a few other clients complaining about them. Most were also poor African-American men. The attorneys didn’t know how many had been wrongly arrested under the void loitering law or whether race had anything to do with it. But the lawyers suspected that the problem was far bigger than Wise and the handful of other people they had met. Together, they started working on a scheme to stop the city from enforcing the void law.

THE HISTORY OF NEW YORK LOITERING LAWS

Loitering became a crime in New York in the 1870s, when northern elites passed stiff laws ordering officers to clear the streets of idle, mostly Irish and Italian, paupers. The New York laws traced their origins to medieval English anti-begging laws.

The first recorded law aimed at beggars appeared in England after the Black Death wiped out half of Europe’s population between 1348 and 1350. In the pandemic’s wake, the number of beggars mushroomed. Unable to secure from the landed elite the wages they wanted, surviving farm hands fled their jobs. Penniless, they began roaming the country, begging. Pat Smith is a University of Michigan-Dearborn economist who has studied anti-begging laws. “Feudalistic societies were coming to an end,” she says “and all of a sudden strangers began to appear in villages looking for assistance.” The landed elite responded by banning it.

The beggars probably annoyed them, but their real goal was controlling labor. With so many killed by the plague, the industrializing country needed workers. And with capitalism emerging, beggars could not be allowed to operate outside of the labor market and in blatant defiance of the laws of supply and demand. Doing that would have “indicted the promise of capitalism,” says Smith. Thus, in 1349 King Edward III