Better Arrests in New York Decoy Program After Officers Receive More Training

Police decoy program raises entrapment claims.

By CHRISTINE HAUSER December 25, 2007 New York Times:

Earlier this year, prosecutors in Manhattan and the Bronx grew concerned over some arrests stemming from the Police Department’s Operation Lucky Bag, in which an undercover officer leaves an item in the subway to see if someone will take it.

Prosecutors said that in some cases, police officers were not proving that the person who picked up the bag had intended to commit a crime.

“We were in the position of having to dismiss some of the earlier arrests because they were based on false premises,? said Barbara Thompson, a spokeswoman for the Manhattan district attorney’s office, adding that she did not have statistics on the number of cases. So prosecutors in her office had a meeting with police officials.

“We explained to them the proof problems we were having,? she said of the meeting, on March 21.

In response, the department ordered additional training and sent a memo in April telling officers to look for six types of behavior by suspects in the Lucky Bag operation: opening the bag and rifling through the contents; removing money or other items; removing valuables and discarding the bag; hiding the bag; denying to an undercover officer that they had found the items; and displaying “furtive behavior? to see if they were being observed.

Thomas P. Doepfner, the assistant deputy commissioner in the Police Department’s legal bureau, described how the rank-and-file were briefed after the meeting.

“We talked about all those kinds of issues and reinforced with the folks at the Transit Bureau that those are the kinds of things that have to occur to make a case prosecutable,? he said. “And that if you have somebody who simply picks up the bag and jumps on the train, that may not yet be enough for an arrest.?

Ms. Thompson said the district attorney’s office was now seeing “better arrests? after the police “revamped their protocols.?

Officials say that Lucky Bag has netted 100 arrests this year and that it is an effective way to single out criminals in the subway. But critics of the program, who have said it borders on entrapment by baiting otherwise law-abiding citizens, said that the memo did not go far enough and that innocent people could still be stopped and detained, even if not arrested.

“The line between an arrest and a mere stop is blurred here,? said Donna Lieberman, the executive director of the New York Civil Liberties Union, a persistent critic of the decoy program. “If the police detain somebody and don’t find larcenous intent, they have no right to keep them any longer. This fishing expedition for justification to arrest somebody is impermissible.?

The contrasting responses to the revamped program crystallize the ongoing debate.

Initially called “Operation Grand Slam,? the program began about two years ago to curb larceny, which accounts for more than half of the reported crimes in the subway.

So far this year, of the 100 people arrested, 58 had prior arrests in 441 crimes, said a police spokesman, Paul J. Browne. He said the few rejections by prosecutors should not detract from the overall success of the program.

“Was there a couple of cases, one or two, where it was a close call and they dismissed the case? Yes,? he said. “But you are looking at an exception to the rule in a very small program to begin with.?

Mr. Browne said the police Transit Bureau chief, James P. Hall, believed that the operation had had a deterrent effect. He said the number of cases of grand larceny in the subway had fallen to 1,277 as of Dec. 16 from 1,469 in 2006.

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A few arrests in the subway program have found their way through the city’s Civilian Complaint Review Board, which investigates accusations against police officers. Some have been dismissed by a judge or not pursued by prosecutors, and others have drawn attention from the news media, academics and civil rights officials, who have said the program could potentially sweep up people who intend to turn in the property or to track down the owners.

“It is a nuanced proposition,? said Eugene O’Donnell, a former assistant district attorney and police officer who is now a professor at John Jay College of Criminal Justice. “You are becoming almost morphed into a suspect, shifting on you a responsibility that you then have to discharge.?

The operation has been scaled back since it was called Operation Grand Slam. At that time, Mr. Doepfner said in a memo that giving suspects an opportunity to turn over the item to a transit authority employee or uniformed police officer could be enough to demonstrate whether they intended to return it.

The operation has since been confined to Manhattan, focusing on station hubs where larceny is reportedly highest. It was discontinued around March in the Bronx because the police decided that the need was greater in Manhattan, said Anthony Schepis, an executive assistant district attorney in the Bronx.

Mr. Schepis said that before the program was halted in the Bronx, assistants reviewing Lucky Bag cases had trouble tying some of them to an intent to steal.

“Lucky Bag presents a difficult case to prove in that often times it is difficult to determine whether someone has actually attempted to steal something or has picked up something with the intent to return it,? he said.

Decades of police work have highlighted the role that decoy and sting operations play in fighting crime in New York City. In the 1970s, police decoys pretended to be tourists or blind people in mugging stings. In 1992, officers took part in a decoy operation in the West Village intended to snare attackers who preyed on gay men. In 2000, after dozens of livery cab drivers were being killed every year, undercover officers drove taxis, reducing the number of deaths.

Back then, the issue of intent might have been less cloudy. “It was more clear-cut in the operations that we were involved in,? said John O’Donnell, a former transit officer who feigned drunkenness as part of a decoy unit from 1985 through 1987. “When somebody snatches a gold chain off a person’s neck, they do not intend to return it.?

The circumstances could change in a split second. Sometimes, people would approach the “drunk? decoy, fish around for his wallet, then look for identification to try to help him, said Mr. O’Donnell, who retired last year and is now a lawyer and professor at John Jay.

“What we were very concerned about is being accused of arresting people prematurely and criminalizing people if they were acting innocently,? he said. “Quite often we would have to break off the operation because they blew it for us. But in Operation Lucky Bag, I think that is one of the problems: When do you know when they are trying to be a good Samaritan or crossing the line??

Intent can be hard to interpret, especially in a crowded subway car or on a platform; the same is true when men on the trains are accused of “bumping,? or rubbing up against women. .

“Just in terms of proof, it is extraordinarily ambiguous,? said Richard D. Emery, a lawyer who won a class-action suit on behalf of men who were falsely arrested after being accused of bumping and other petty crimes.

With Operation Lucky Bag, the police have been accused of misinterpreting intent. The New York Civil Liberties Union said that was the case with Aquarius Cheers, who was arrested in February when he picked up a shopping bag and then jumped on a train without contacting a uniformed officer about 12 feet away, according to a criminal complaint. Mr. Cheers said he had intended to read the receipt and return the bag to its owner. The case was later dismissed.

“One has to assume that for every case that comes to public light where somebody is improperly detained or arrested, there have to be many more that do not make it into the public eye,? said Ms. Lieberman.

“These programs are a violation of civil rights when they result in the arrest of good Samaritans,? she said.

One case in 2006 and two cases this year have made their way through the Civilian Complaint Review Board, said Andrew Case, a board spokesman. Of the more than 7,000 cases the board handled each year, that number was “minuscule,? he said. In the one case that was closed, the police’s actions were exonerated, he said.

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