Using NYPD Warrant Squads to Monitor Protesters May Violate Constitution: Experts

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Additional Occupy Wall Street demonstrators are coming forward to allege they were targeted by police officers executing old bench warrants for minor violations in order to collect intelligence about the May Day protests this week.

Executing old warrants -- no matter how minor -- is legal.  But legal experts say the tactic becomes illegal if it is done solely to investigate political activity.

The half-dozen or so stories  fit a pattern: each individual was approached and questioned by officers who said they were picking up people on arrest warrants for low-level, non-criminal violations, such as public urination, walking around with an open container of alcohol or biking on a sidewalk. These warrants can stay open for years.

Court officials say there are more than 1 million bench warrants currently open for these types of violations in New York City.  But this week, squads of police officers decided to act on a few of them.  

Swarmed and Plucked From the Street

Officers visited up to six homes the day before the May 1 protests, but Shawn Carrié found himself getting questioned the evening of the protest. He was coordinating all internal communications for the Occupy movement on May Day. At about 9 p.m., he was walking near Wall Street, heading home.

“And somebody comes up to me and says, ‘Shawn?’  And just grabs my arm and nine dudes surround me,” said Carrié.

He said nine plain clothes officers wearing NYPD jackets asked if he had anything sharp in his pockets.  He shook his head no. He said they started pulling possessions out of his clothes, including his cell phone, his wallet and keys.  

Within seconds, he said, they bound his hands with zip ties, but didn't explain why. Then the officers placed him in a red van waiting nearby that was marked with an NYPD sticker, he said.

When he arrived at Police Headquarters in Lower Manhattan, Carrié said there were several other people waiting to be processed, but he skipped ahead of them. He said he police quickly led him to a room filled with boxes of files where he was alone, except for one officer staring at him from a table.

“And he said, ‘Go ahead, sit down,’” said Carrié.  “He asked me, ‘Do you know why you’re here?’” said Carrié.  “And he said, ‘Tell me about what you were doing today.’”

Carrié said he didn’t say anything. The NYPD declined to comment, and would not verify Carrie’s account of events.   

He noticed the officer’s badge number. WNYC traced that number to a detective within the NYPD's Intelligence Division.  A sergeant who signed the property voucher form issued to Carrié for his confiscated property identified himself on the document as another member of the Intelligence Division.  

Carrié said he spent the next 13 hours in jail.  

He said he was placed alone in a cell. It’s unclear why he was isolated from the holding pen where several individuals typically wait together to see a judge.

He found out at court the next day that he had been arrested because of two open warrants from 2007 for violations related to a public urination incident.

When his lawyer read the warrants, it turned out they belonged to a different Shawn Carrié, who had a different birth date and a different address.  But now this Shawn Carrié — a name he said is not his given name and one he only uses for marches — has to go to trial next month to fight what he says are false charges.  

“Scared to Freely Communicate”

Carrié said, regardless of the infraction, the alleged practice of using old warrants as a pretext for questioning people about their political activity can chill speech.  

“It’s making people scared to freely communicate, and making them feel like they're watched.  ‘Even if you're not doing anything wrong, we're watching,’” he said.

Another individual whom officers questioned this week agrees an atmosphere of intimidation is created when police officers make it known they’re focusing their attention around individuals involved in Occupy Wall Street organizing.

Zach Dempster was woken up at 6:15 a.m. the morning before May Day when six officers barged into his living room and said they had an open container warrant for his roommate Joseph Ryan.

Dempster says even though his roommate was the one getting arrested, an officer led him into his bedroom to question him about his plans for the next day.  

“It was fairly intimidating.  I mean, I somehow presumed at that moment that I was just going to be arrested,” said Dempster, who did not end up getting arrested.  

It’s unclear how police found the names of protesters or why certain members appear to have been targeted.

Legitimate Police Work or Running Afoul of the First Amendment?

On Thursday, Police Commissioner Ray Kelly told WNYC he stands by using warrant squads to get intelligence on Occupy Wall Street.

“We do what we have to do to protect the city and obviously that is a legitimate police function,” said Kelly.

But some legal experts say the tactics may not be legitimate.

Jethro Eisenstein, who is one of the plaintiffs lawyers in the long-running Handshu case, which set up guidelines for how the NYPD can monitor political groups, said the Handshu rules require the NYPD to follow the U.S Constitution with a heightened awareness.  

He said under a U.S. Supreme Court case, Mt. Healthy City School District Board of Education v. Doyle, the NYPD has to show that it would have executed these bench warrants even if these particular individuals were not involved in Occupy Wall Street protests.  

In other words, said Eisenstein, the police could be violating the First Amendment if they arrest someone on a bench warrant solely because they want to question him about his political organizing.

“Since these are the kind of warrants that typically sit for years and years, I think it's fair to say that they wouldn't have done it but for their desire to question these people about their First Amendment activities,” Eisenstein said.  

Members of the police department reportedly use the strategy when crowd control at events is a concern.  But that doesn't explain why Carrié was picked up on May Day after the marches had been winding down.

The property voucher form, the document Shawn Carrié will have to submit to collect the belongings that were confiscated during his arrest, shows two officers from the NYPD’s Intelligence Division processed Carrié’s arrest.

Shawn Carrie NYPD Property Voucher p2