An unlikely activist's battle with the NYPD's frisky business
Jazz Hayden might be the most unlikely character in the long-running controversy over the NYPD's stop-and-frisk campaign, which has affected more than 4 million New Yorkers since 2004.
The 70-year-old Hayden, whose given name is Joseph, is a longtime community activist in Harlem. In a past life, he was a street hustler who served three years in prison in the late 1950s for drugs, was falsely accused in the late 1960s in a high-profile shooting of two police officers in the politically turbulent year of 1968, was convicted of money laundering in the 1970s, and served 13 years in prison from 1986 to 2000 for manslaughter after a traffic dispute turned fatal.
Hayden has spent the past four years irritating police officers by videotaping them as they stop and frisk people in Harlem in a program he calls "Copwatch." He often posts the videos on the Internet. For most of that period, he encountered little more than annoyed cops, but recently, his activities might have caught up with him.
Last summer, Hayden filmed two plainclothes officers during an evening car stop. The exchange between Hayden and the officers was contentious, even though the two motorists who were stopped were let go without charges.
At least one officer was aware of Hayden's past, because at one point, he can be heard saying: "You done selling drugs yet or what? I know your rap sheet." And then later, the tape shows, the same officer can be heard saying: "Go sell some more drugs, sir. We know your background. I know who you are."
Then, on December 2, as Hayden drove away after a meeting at Riverside Church, the same two officers stopped him, searched him, and arrested him for possession of a penknife. "We know you," one of them said.
"These guys knew who I was," Hayden says, calling it "NYPD officers taking revenge on me. . . . It was clear retaliation."
Chris Woods, a 35-year-old security guard, happened to be walking by and witnessed the police stop Hayden. "He didn't say anything offensive or abusive to the officers, but that wasn't good enough for them," Woods says. "That he was talking with them seemed to make them more furious. The whole thing shouldn't even have been a criminal matter."
What probably should have been a minor incident became 48 hours in holding cells and a felony weapons charge against the activist. Hayden's arrest has also become something of a cause in Harlem.
Among other events, Hayden's allies organized a protest at the Manhattan Supreme Court on January 19, one of his court dates. The protest was attended by elected officials and activists. The board of the radio station WBAI, where Hayden was once a producer, passed a resolution in support of him.
In 2010, the NYPD, in a campaign touted by Police Commissioner Ray Kelly as a key element in the war on crime, stopped more than 600,000 people throughout the city. From 2004 to 2009, police stopped 2.8 million people; the largest age group is males 15 to 19, following by males ages 20 to 24. Just 9 percent of the stops resulted in an arrest. And in 2011, the police were on pace for 686,000 stops—a new record.
In the 2010 Voice series "The NYPD Tapes," police supervisors in the 81st Precinct in Bedford-Stuyvesant order cops to make a quota of one or two stops per tour. Police Officer Adil Polanco, who was assigned to a Bronx precinct, said similarly that there was a stop-and-frisk quota there. If those orders are typical for most precincts—and that appears to be the case from the tapes and Polanco's statements—then quotas are a key factor in fueling the rise in stops.
Even so, Kelly has said repeatedly that the stops keep people from carrying weapons, drugs, and other illicit items on the street. He said it again most recently in a December 11 affidavit filed as part of a lawsuit: "Stops serve as a deterrent to criminal activity."
He has been backed on this by Mayor Bloomberg, the New York Post and Daily News editorial pages, and commentators including the Manhattan Institute's Heather Mac Donald, who tied the stops to the crime decline and declared that the campaign "saves minorities' lives."
And yet the campaign has spawned ongoing opposition not only from elected officials and activists but also from regular New Yorkers. Last September, police stopped and handcuffed Councilman Jumaane Williams and an associate at Brooklyn's West Indian Day Parade.
Williams raised a fuss, which led police spokesman Paul Browne to claim that someone had punched a police officer during the incident. Williams called that claim a "bald-faced lie," and Browne hasn't uttered another word about it since.
But aside from public opinion, there's a major cost to the campaign in actual dollars. Over the past couple of years, the number of lawsuits filed by New Yorkers alleging improper stop-and-frisks has continued to grow. There might be some element of lawyers seeing a new area in the always-busy police-litigation business, but the rise also indicates a frustration among New Yorkers with the practice.
In the month of January alone, more than three dozen lawsuits alleging improper stop-and-frisks were filed, based on a Voice reading of the complaints. Extrapolated, that means that the city could be sued more than 400 times this year alone just on improper stops.
If each case settles for a minimum of $10,000, that's at least $4 million in cost to taxpayers, not including the cost to the police department in work hours assembling the documents and removing cops from the street to be deposed, and the cost to the corporation counsel in paying lawyers to defend those cases. One wonders how much money the city is willing to spend on this litigation just to stick with the police commissioner's campaign. (We asked the city law department this question but did not receive a response.)
The people who filed suit last month appear to come from all walks of life—an auto mechanic, two high school students, a commuter, a Transit Authority worker, a guy walking home with a bag full of dog food. In all of the cases, the criminal charges, if any, were dismissed.
Take Francis Destouche, for example. Destouche, a 53-year-old auto mechanic with a clean record, was walking home in the Bronx in October 2011 when he was stopped for no apparent reason by police. They searched him, found nothing, and then accused him of "throwing something away." He was arrested, held for 20 hours, and missed his granddaughter's birth. The charges were dismissed. Destouche's lawyer, Paul Mills, alleges that the stop and the arrest were a result of the NYPD's "quota policy."
"This arrest cannot be explained by any of the common categories of false arrest," Mills says. "He's not even smoking a cigarette. So, if you eliminate the other possibilities, there's no other way to explain it other than it was for the quota."
Mills says Destouche decided to sue because missing his granddaughter's birth was significant. "There are people out there for whom at his advanced age, after a lifetime of respect for the police, to suddenly be abducted and jailed for 20 hours is very upsetting. It was a big deal to him."
Or consider the case of "M.S.," a 16-year-old Staten Island youth who says he was stopped for walking down the street, detained, and searched. His backpack was searched. He was physically restrained. Charges were eventually dismissed. The lawsuit goes on to quote at length from stop-and-frisk studies, which suggest a bias against young black and Hispanic males.
Scott Joyner was waiting for a bus in Brooklyn in June 2011 when he saw cops arresting two other people. An officer walked over and grabbed his arm but released him when he realized Joyner was just standing at the bus stop. Joyner walked to a pay phone to file a 311 complaint, and there he was arrested, he alleges, for trying to make a complaint. Charges were dismissed.
In January 2011, Jamie Jarrett was walking down a Brooklyn street when a van of cops rolled up and began searching him. They found no weapons or drugs. The officers refused to explain why they were placing him under arrest. The charge of marijuana sale was dismissed, but not before Jarrett spent 48 hours in custody.
Kenrick Gray, 32, of Staten Island, claims he was falsely stopped, searched, and detained twice in late 2010, the second time resulting in false arrest. His lawyer alleges racial profiling led to the stops.
Likewise, Jarrett Savage claims he was illegally stopped and frisked in October 2010 in Brooklyn. He was pushed against a wall, searched, and taken to the precinct, where he was strip-searched in front of another prisoner. The charges were dismissed eventually. "This is not an isolated incident," the lawsuit alleges. "The city is aware that many police officers are insufficiently trained to stop, detain, arrest, and strip-search individuals."
Ramon Morales says he was cleaning his car outside his sister's house on Cabrini Boulevard in Manhattan in August 2009 when cops stopped him for no apparent reason, accused him of drug possession, and searched him and the car. They found no drugs but charged him with a DWI, even though he wasn't driving. Eighteen court appearances and nearly two years later, the charges were dismissed. And Morales claims someone stole stuff from his car while it was in police custody.
Daryl George, a 36-year-old transit worker who had never been arrested, sued this month following a questionable stop in January 2011. George says he was talking with a friend about buying an iPod in the lobby of a Brooklyn building when police came in, ordered everyone against the wall, and searched them. George didn't have any contraband, though someone else in the lobby did. George was arrested anyway, and though the charges were dismissed and the case was sealed, he was suspended by the Transit Authority and lost five months' pay and benefits.
Kevin Adams claimed he was illegally searched and arrested in February 2010 in the lobby of the Brooklyn building where he lives with his mother. Later that day—the arrest took place at 10 a.m.—they released him because the district attorney declined to prosecute, but not before he was roughed up and strip-searched in a police van.
Gregory Pope also sued last month. He claims he was walking on Coney Island in August 2011 when he was jumped by four plainclothes officers. They searched him. He told them they couldn't just search him for no reason. After that, they arrested him and strip-searched him at the precinct. The police also took his car to the precinct, where they searched it and caused a range of damage. Pope was held in the precinct for a day and then, inexplicably, released without charges.
Schedrick Campbell was walking home with a bag of dog food in March 2011 in Brooklyn when three plainclothes officers grabbed him, accused him of swallowing drugs, and tackled him. Despite a strip search in the precinct and a series of forced and invasive medical tests over two days at Interfaith Hospital, no contraband was found. The hospital billed Campbell $9,500 for the concocted arrest.
And in April 2011, while Keenan Baskerville was walking down a Brooklyn street, he was stopped by police, accused of smoking marijuana, which he denied, and arrested. He was strip-searched, but no contraband was found. Baskerville also sued.
Monique Williams sued as well. She says that when she asked why she was stopped, a police sergeant said to her, "Because I can," a statement that doesn't appear in the NYPD's official stop-and-frisk policy.
On rare occasions, police officers can get into deep trouble for improper stops. Michael Daragjati stopped and frisked a man on Staten Island. The man complained about the stop, as the search found no contraband. Daragjati then arrested him and claimed the man had flailed his arms and kicked him.
That arrest was proved false, and Daragjati was indicted on federal civil rights violations. It didn't help that investigators caught him using racial slurs to boast about the arrest. Daragjati lost his job, pleaded guilty, and had to agree never to work as a cop again. He faces a year in jail and a $100,000 fine.
Chris Woods, the witness to Hayden's arrest, compared improper police stops here to the burgeoning scandal in East Haven, Connecticut, where the police chief had to resign after four officers were indicted for targeting, harassing, and even beating black and Latino males who threatened to report misconduct. The case grew out of a federal civil rights investigation.
"Officers are doing the same thing over here," Woods says. "It's a similar situation, but no one's doing anything about it."
Meanwhile, the endless saga that is Floyd v. City of New York continues to lumber through federal court. Floyd is a class-action lawsuit filed in 2008 by four citizens and the Center for Constitutional Rights that alleges that the NYPD's massive stop-and-frisk campaign routinely violates the civil rights of New Yorkers. (One citizen is the first named plaintiff, David Floyd, of the Bronx.)
In the latest legal maneuvering in nearly four years of litigation, the plaintiffs have asked the judge for "class certification," which would open the door for hundreds of thousands of additional plaintiffs. The city, on the other hand, is trying to block expert testimony from Jeffrey Fagan, a Columbia University professor who wrote a study of the strategy, by claiming that his use of the data was "misleading," ignored police crime-fighting innovations, "ran counter to accepted statistical practices," is "fatally flawed," "irrelevant and unreliable," and offers "speculation and conjecture."
Darius Charney, lead attorney for the plaintiffs, says the city has refused to engage in any substantive settlement talks, despite the fact the issue is "of great public concern," the judge in the case wrote. There were a couple of meetings before a magistrate judge, but Charney calls them "a complete waste of time."
Asked whether he thought the Bloomberg administration is seeking to delay an outcome until after the mayor leaves office in two years, Charney said: "I don't know what they are thinking. I do find it odd that given all the press on this, they have been completely unwilling to address these issues."
As for the NYPD's claim that the campaign acts as a deterrent to crime—the city uses the Orwellian term "pre-emptive policing"—even though it produces relatively few convictions, Charney says there is "no empirical proof" of that. "There's no study that shows that aggressive stop-and-frisk deters crime," he says. "And you have to have reasonable suspicion under the Fourth Amendment. If they did 700,000 stops a year legally, we wouldn't have a complaint. But we contend the vast majority are illegal."
The Floyd case actually suffered a blow earlier this year, when U.S. District Judge Shira Scheindlin ruled that police had enough reasonable suspicion to frisk Floyd himself. Floyd had been stopped while entering his apartment building in February 2008.
Scheindlin based the decision on the city's claim that officers were acting on an ongoing pattern of burglaries in the area.
The CCR lawyers, however, went back and looked at the crime statistics for the preceding two months and found, instead, that there had been just one burglary in that area during the period. They filed a new motion based on that.
In November, Scheindlin granted the motion. She noted the new evidence was "deeply concerning to the court."
"Shockingly," Scheindlin wrote, police use the justification of "high-crime area" in stops even in low-crime areas. Fifty-five percent of stops are justified with that notation. The city justified its stop of Floyd with the high-crime notation.
"Plaintiffs have now raised severe doubts about the existence of that [burglary] pattern," Scheindlin wrote, adding that "it would be a miscarriage of justice" to deny Floyd's legal claim as a result.
Jazz Hayden, it certainly can be said, has lived in interesting times. He didn't really want to talk about the old days in a recent interview, but it's all chronicled in detail in crime journalist T.J. English's book The Savage City, which examines New York in the 1960s and 1970s. Hayden also appears in a documentary about Harlem drug kingpin Nicky Barnes titled Mr. Untouchable.
As a youth, Hayden supported himself by collecting bottles for pennies outside the Polo Grounds, shining shoes, and working for a barbershop, English writes. He became a hustler, first gambling in dice games and then running his own games. His uncle introduced him into the numbers game, and eventually, he was the person taking the bets.
English writes that in the late 1950s, Hayden, at age 16, was arrested for possession of 11 bags of heroin. He was sent to state prison for three years. He emerged from those abusive years embittered and angry, English writes.
Hayden fell into selling marijuana and heroin to survive. Meanwhile, the streets were filled with political discontent, personified in the Black Panther Party, which was at war with the police. But Hayden avoided the Panthers because survival was more important.
On September 27, 1968, a black male fired a rifle on two police officers sitting in a patrol car on 114th Street. The officers were wounded but survived. The police mobilized to catch the shooter.
Walking home with a friend, Hayden saw police around his apartment building. He had become a suspect in a high-profile crime that he had nothing to do with. He fled, until days later when the police caught up with him at a girlfriend's apartment. Hayden eventually learned that a person he knew had blamed the shooting on him under pressure from the police.
English notes that the shooter was described as about six foot four. Hayden is five foot five. Hayden was convicted anyway and sent to Attica state prison. Eighteen months later, the conviction was overturned, and Hayden was released, but he says he became a energetic critic of police tactics.
"In a time of war between the NYPD and the black liberation movement, [Hayden] was collateral damage," English writes.
The money-laundering conviction followed several years later, a result of Hayden's association with Barnes, and then the traffic dispute with a sanitation worker landed him in prison for 13 years. After he was released in 2000, he pursued several civil rights campaigns, the first being a class-action lawsuit over the fact that prisoners were denied the right to vote. In 2008, he founded Still Here Harlem Productions, a company that he envisioned offering an outlet for events the mainstream media ignored, and a website, allthingsharlem.com. Around then, he began filming stop-and-frisks. "It turned out to be the major issue in Harlem," he says.
Hayden has worked for various nonprofits since his release, done quite a bit of traveling to speak on civil rights issues, and is currently on Social Security. He has a wife of 40 years, eight children, 15 grandchildren, and one great-grandchild. He has been a hustler, a prisoner, but also a teacher and a scholar, even though as he says, he has been kicked out of every school he went to. He has had a summer fellowship at Harvard. "People tend to see you for one chapter in your life, but it's much more than that," he says.
One of the things Hayden does is videotape police officers performing stop-and-frisks. "I decided to tell them: 'I'm on your side. I'm here to observe you provide courtesy, professionalism, and respect,'" Hayden says. "What response could they make to that? Ray Kelly is the replaceable part. The person really upholding and sanctioning the policy is Bloomberg,"
Paolo Walker, a freelance videographer who has worked with Hayden for more than three years, says filming police "can be an intimidating experience."
A wealth of legal precedent and of course the First Amendment of the U.S. Constitution makes photographing in public areas legal, but that memo apparently didn't make it to a lot of members of the NYPD.
"It is typical for the cops to give you a hard time and make threats to you to stop filming," he says. "Seeing a video of an incident and being able to put a human face on what's happening lets people see what's truly going on."
On one occasion, Walker says, officers filmed him filming them. An officer demanded his credentials and identification and insisted that he move along or else he would be arrested. In another incident, Walker says he was told "I'll get you" by an officer who told him to stop filming. Several times, Walker says cops pushed his camera and claimed they couldn't tell it was a camera.
One evening last summer, Hayden was out and came across a car stop in Harlem. Hayden videotaped the officers, who seem from the video to be fairly irritated that he was there. They not only shined their flashlights at him repeatedly, but they also told him they were aware of his prior arrests.
On December 2, Hayden left Riverside Church and was soon pulled over by the same two officers from the incident over the summer. He asked them why he was being stopped, and they eventually told him a brake light was not working. He provided his license and registration and was asked to step out of the car. Hayden claims one of the officers said: "Hey, we know you. . . . You're that murderer."
Hayden, unlike most people, was aware of his rights under the Fourth Amendment, which protects Americans from unreasonable search and seizure. He told the officers they could pat-frisk him, but they couldn't search him or his car. The officers told him to stand at the rear of the car, and they began searching it—illegally, Hayden alleges, because he hadn't consented to the search.
"They ignored me and went right into my car and began searching it," Hayden says.
The search yielded a penknife, and rather than confiscating it, the officers arrested Hayden on a felony weapons charge, and took him to the 32nd Precinct in upper Manhattan. He was held in the precinct for the next 48 hours, except for a visit to Harlem Hospital for a blood-pressure check.
In the criminal complaint, the police didn't mention the brake light. Instead, they claimed they saw him suspiciously "moving his hands on the console of his car." Hayden's supporters call that a fabrication. He also wasn't charged with any traffic violations.
"That summer, NY1 had posted some coverage of me," Hayden says. "Maybe the cops saw that, when they see me out there filming."
For now, as his case winds its way through the court system, Hayden says he'll continue videotaping police. He is also preparing to go down the same road as so many other New Yorkers and sue the NYPD for the improper stop and arrest. One of his lawyers is Sarah Kunstler, the daughter of another firebrand from the old days, civil rights attorney William Kunstler. His next court date is April 17.