Extralegal Observations of a Protest Arrest

By Andy Izenson, NLG-NYC

Photo by Thomas Altfather Good

Photo by Thomas Altfather Good

The criminal complaint associated with my arrest dated 4/29/2015, lists the following charges:

  • PL 195.05 Obstructing Governmental Administration in the Second Degree
  • PL 205.30 Resisting Arrest
  • PL 240.20(5) Disorderly Conduct
  • PL 240.20(6) Disorderly Conduct

It says that I attempted to grab two officers who were making an arrest, and that when the testifying officer tried to arrest me for doing so, I “flared [my] arms around” and tried to hit him with my elbows. In the description of this series of (fictional) events, the complaint alternates between using “he” and “she” to refer to me.

Besides the pronouns, this is a pretty standard list of charges for a person arrested at a demonstration. Here’s how it breaks down:

“Obstructing Governmental Administration,” or “OGA” is an accusation of “intentionally prevent[ing] and attempt[ing] to prevent a public servant from performing an official function by intimidation, physical force, and interference and by means of an independently unlawful act.” “Resisting Arrest” is an accusation of “intentionally attempt[ing] to prevent a police officer and peace officer from effecting an authorized arrest of [one]self and another person,” and the two “Disorderly Conduct” charges, or “discon,” refer to acting or engaging in conduct “with intent to cause public inconvenience, annoyance, and alarm, and recklessly creating a risk thereof, obstruct[ing] vehicular and pedestrian traffic [and] congregat[ing] in a public place with other persons and refusing to comply with a lawful order of the police to disperse.”

One particularly notable thing about these allegations is that none of them were true. Here’s how that happened.

On April 29th, 2015, a little after 7:00 PM, the Black Lives Matter march in Solidarity with Baltimore that was gathered in Union Square spontaneously began to move West on 17th street. When the front of the march got about halfway down the block, it hit a line of NYPD several officers deep. With the street ahead blocked off and nowhere to go, the front line of the march splattered against the unyielding wall of riot gear and kept pushing forward.

As this was happening, I was flat-out running through the crowd trying to get to the point of conflict — a short, white, gender nonconforming trans guy in a neon green baseball cap and, even more embarassingly, cargo pants, dodging between people and obstacles as I threaded through the protest. I’d gotten word that arrests were happening or imminent, and I needed to be closer to do my job — the job of observing the interactions between the police and the protesters, as a member of the National Lawyers Guild.

The National Lawyers Guild was founded in 1937 as a progressive alternative to the American Bar Association. Over the years it’s been involved in many areas of radical legal activism, including labor organizing, civil rights and civil liberties, environmental policy work, anti-mass incarceration work, and anti-racist movements. One of the NLG’s better-known programs is the Legal Observer program, a subset of organizing that supports protests and demonstrations. Legal Observers are trained to support the First Amendment rights of protesters as neutral observers, both by serving as witnesses who can testify about police brutality against protesters and by tracking arrestees through the system, making sure nobody falls through the cracks, and connecting them with legal support if they need it.

I started Legal Observing with the National Lawyers Guild when I was in law school in 2011. I got trained soon after Occupy Wall Street settled into Zucotti Park, which was a few blocks from my campus. I’d go over in the evenings and between classes, and I’d walk the perimeter of the park, wearing the neon green baseball cap that identified me as a Legal Observer with the National Lawyers Guild, watching interactions between NYPD officers and members of Occupy.

I learned so much from watching those interactions — about class, and race, and violence, and threats, and power — but the biggest thing I learned was that everything I knew about cops was wrong.

I grew up in pretty rural New Hampshire, in a town of about 10,000 on a good day, with a racial makeup about standard for the state, in the order of >96% white, and a police force numbering about thirty. I remember having a few interactions with the police force there when I was growing up, but the most representative thing that I remember was a young officer named Matthew whom my mother had befriended when they were both out walking their dogs. Our boxer puppies, Huckleberry and Chloe, and his boxer puppy, Theodore, had rapidly become inseparable, and so Matthew would come to our house and drink coffee and gossip with my parents and watch the dogs chase each other around the yard. When my younger sister ran her car off the road one night, Matthew gave her a lift home and gave her a gentle lecture about seatbelt safety.

So when I arrived in New York City with a liberal arts degree and the starry-eyed and catastrophically ignorant idealism of a young, white, rural queer who has only very recently discovered other queers exist, that was what I thought cops were: a bigger version of my dad whose job it was to make sure everything was okay.

At Occupy, I watched those authority figures, figures whose status as a beacon of safety I’d never been given reason to question, bring their weapons down on the heads of people who were doing nothing but sitting and singing, handle their bodies like meat, hurt them with uncaring ferocity, and I realized all at once that I had been severely misinformed.

I watched a lot of other people have that realization around me at about the same time, other people who were similarly positioned to me — young, white, rural, idealistic and enthusiastic, educated but not experienced — and who were also having their first experience of the cops as something other than benevolent.

Though the Occupy movement has its own inherent problems, I see some real benefit to the anti-police brutality movement derived from this moment. This violence has always been perpetrated against people of color, against transgender women, against poor people, against disabled people against sex workers, but suddenly, through Occupy, it had a new target. Suddenly, through Occupy, it was happening to people who hadn’t spent their lives expecting it, to whom it was a new and outrageous thing, and who therefore were willing to speak up about it and who would be listened to when they did. I can see a charge of additional energy being given to an existing movement on these issues by that change, though it’s crucial that change occur in the context of the fact that this has always been happening and has always been fought by those populations most affected.

This learning experience galvanized me to devote more energy to that struggle, to continue my involvement with the National Lawyers Guild and its Legal Observer program beyond Occupy and, as time passed, into support of the Black Lives Matter movement, which has been in part catalyzed by, and also seen an escalation of, police misconduct and brutality on an incredible scale.

Doing the work of Legal Observing feels to me like a valuable leveraging of my whiteness — placing my white body in a literal and tangible way between the police and the people who are vulnerable to police violence. It’s also a repurposing of my own class and educational privilege, my middle-class upbringing and the law degree to which it provided me access, to provide a unique type of specifically requested support to protesters who don’t necessarily have that access and the veneer of respectability afforded by it. On many occasions, protesters have expressed appreciation for the panopticon-like function of our presence and our visibility, identifying that the police are less likely to enact violence upon them when they know we are there, watching them, and serving as symbols and agents of the potential for accountability for their actions.

Which brings us back to April 29th, 2015, a little after 7:00 PM.

The protest was in solidarity with the Baltimore uprising after the killing of Freddie Gray in police custody. The NYC crowd, organized by Millions March NYC, was estimated to be between three and four thousand people. The crowd formed in Union Square and eventually shut down the Holland Tunnel and the West Side Highway, Times Square and Herald Square, making its presence known all over Manhattan.

If you’ve never been part of a crowd of thousands of people, united in solidarity and rage, filling the intersections of streets like a fluid, it’s difficult to describe. Manhattan is always full of crowds, but this is different from that the way iron filings are different when a magnet touches them — suddenly moving as one, imbued with purpose and charge, scattered with pockets of chaos.

As the front of the march started to hit the line of police officers, I was wearing my highly visible Legal Observer hat, and I had my notebook in one hand and my pen in the other. I approached the juncture of the crowd of protesters and the crowd of cops. I could see an arrest happening, and I ducked under some scaffolding to get around the packed and panicking crowd.

As I ran towards the arrest — the person being arrested almost completely hidden under the pile of police officers now on top of him — I was shouting to him, “What’s your name? What’s your name?” Tracking arrestees through the booking system requires knowing their full name and, ideally, their date of birth.

I felt a jerk as the bandanna around my neck was grabbed from behind, but I kept trying to get closer to the person being arrested, kept trying to get his attention. A second officer threw his arm around my neck, and a third tackled me to the ground. There’s video of this on Youtube — all in all, about six officers were piled on top of me, one of them kneeling on my back and another tearing my notebook and pen from my hands and grinding them into the street. As the officer kneeling on top of me tightened the flexcuffs — basically enormous zip-ties — on my wrists, he was shouting in monotone, “Stop resisting, stop resisting.” While I wasn’t moving or resisting in any way, I learned later that doing so is standard practice during any protest arrest so that the Arresting Officer can slap a “Resisting Arrest” charge on top of whatever else is going on.

When they knocked me down, my Legal Observer hat flew off and landed a few feet away. As they hauled me to my feet, I made eye contact with another Legal Observer who was nearby and jerked my head towards it, trying to shout “Get my hat!” My hope was that she would collect it when the police had moved on, so that it wouldn’t get lost or destroyed — people are always losing their LO hats and so there’s an ongoing shortage. I don’t know — you hyperfocus on weird things when you’re being thrown against a police car, I guess. Strangely, one of the officers heard me, retrieved my hat, and replaced it securely on my head before they pushed me into the back of the van. As I entered the van, I heard the Arresting Officer say to me, “Maybe this will teach you to mind your own fucking business.”

Now is probably the right time to explain that part of the benefit of being a Legal Observer is that it insulates you to a certain extent from being arrested at a protest. In order to be a member of the National Lawyers Guild-NYC Chapter and therefore a Legal Observer with that program, you have to be a lawyer, a law student, or a legal worker, so wearing the green hat identifies you as someone who probably knows what rules the police officers are supposed to be following and is likely to have access to channels for redress in the event that those rules are not followed. There’s actually a term in the NYPD Patrol Guide stating that neutral Legal Observers have “free access to pass unmolested through police lines at the scene of any demonstration…shall be permitted to remain in any area, or observe any police activity, subject only to restrictions necessitated by personal safety factors, as determined by the incident commander…[and] all members of the service will extend every courtesy and cooperation to observers.” And further, it’s difficult for the NYPD to prove the requisite intent in a Legal Observer’s actions for a criminal charge, because individual Observers’ intent in their actions at demonstrations is well-established and non-criminal. Accordingly, it’s relatively rare for NLG Legal Observers to be arrested; it hadn’t happened in New York in several years.

I found myself in the back of the van with six women, all with their hands also cuffed behind their backs, in varying amounts of distress. One of them was nearly screaming to try to get the attention of the officer in the front of the van. Her flexcuffs were too tight and her hands were completely numb and purpling, and she was sobbing with pain and trying to knock on the partition with her shoulder. Another woman was bleeding from the forehead — she said that the officers arresting her had slammed her face into the street multiple times, and we all racked our memories for how to check for signs of concussion, trying to examine her pupils in the dim light. The group of arrestees quickly developed a sincere group cohesion and collaboration, checking each other’s hands for blood flow, trying to loosen each other’s cuffs, helping each other extract their cell phones from their pockets to try to alert loved ones of their location or get in touch with the NLG or with other organizers. Holding my phone behind my back with my cuffed hands, I quickly texted the NLG executive director, my partner, and a close friend who frequently worked on the public defender end of protest support. “I know you wanted a day off tomorrow, sorry,” I told my friend, “but if you could come arraign me that would be really awesome.”

The other arrestees in the van recognized my hat and asked me what was going to happen. Most of them had never been arrested before either, but I told them what I knew from the trainings. I recited the NLG hotline phone number and they passed around a pen, hand to cuffed hand, to try to awkwardly scrawl it on each other’s forearms. “If they ask you any questions other than your name and your date of birth,” I told them as the van started to move, “the answer is ‘I am going to remain silent and I wish to speak to my lawyer. I am going to remain silent and I wish to speak to my lawyer.’”

I knew bits and pieces of what to expect out of the process, but I also knew that all of my trainers, all of my fellow Legal Observers, and most of the other people in the van with me, unlike me, were cisgender. I knew that NYPD treatment of trans arrestees varies wildly based on factors including race, age, and how the officers you’re dealing with perceive your gender, but it’s never good. My heart hammered as I thought about stories I’d heard and read, stories of trans people being left alone with no information or food, being beaten or raped by their cellmates or by the officers who were supposed to be guarding them, being brought to Riker’s Island over what should have been a Desk Appearance Ticket. Even so, I kept speaking, giving an impromptu Know-Your-Rights training in the back of the van, distracting myself enough to stave off panic.

When the van arrived at the precinct, they pulled us out one at a time. The officer beckoned me down, and they took my possessions, including my stand-to-pee device (a prosthetic allowing transmasculine people to use the bathroom standing up), my wallet and keys, and what I had left of my Legal Observing gear. They searched me again after getting us all inside, squeezing and groping at my bound chest and running their hands repeatedly up and down my thighs, laughing with each other and calling me “Ma’am-Sir-Ma’am” as they did so.

I am, by the way, a gender non-conforming transmasculine person. What this means practically is that I run into about an even fifty-fifty split in terms of whether people that I don’t know perceive me as male or female. I don’t know when or how my arresting officer made the decision that it was appropriate to house me with the women, but there was clearly some second-guessing of that decision throughout the process by other staff at the precinct and Central Booking.

The Patrol Guide states that if the gender of an arrestee is not readily apparent, the officers should ask the arrestee whether they would prefer to be searched by a male or a female officer and comply with the arrestee’s preference. Instead, the small group of officers standing around where they searched me conferred with each other conferred loudly with one another before deciding that I should be searched by women.

Once the guards were satisfied with their findings in relation to my chest and groin, they put me in a small holding cell with about six other people. I saw the men’s holding area on the way into the precinct, and saw that it was one large room housing every person that had been arrested that night and sorted into the “men’s” section. By contrast, the “women’s” side was a row of smaller cells, maybe five by eight feet, each holding between five and seven people, a metal bench, a toilet and sink.

Time passed. The guards didn’t give anyone information or answer any questions. The woman from my van with the head wound was taken out of her holding cell by a guard and wasn’t brought back. A few people shouted tirelessly for hours, demanding medical care, attention, information. I would estimate the women’s side of the precinct housed about sixty people over the course of the night.

The toilets were in the corner of each cell, in front of the open hallway, and we took turns shielding each other from view as we used them.

We passed time by singing — we started with protest songs, then ran out of protest songs and started in on the Spice Girls and Beyonce. A few people tried to sleep, but it was freezing cold, loud, and halogen bright. One of the other people in my holding cell taught the rest of us biofeedback exercises to help us stay calm.

There was another trans person in the holding cell next to mine. I heard him shouting, asking why they had placed him in the women’s booking cell, demanding assistance. I put my hand through the bars to get his attention and spoke to him, asking his name, telling him mine. I told him I was trans too and that I would try not to leave him alone. He, like several of the other arrestees, hadn’t been part of the action, but had been arrested as a bystander. He couldn’t have been more than twenty, and I held his hand through the bars until he stopped crying.

After maybe four or five hours, the guards distributed what you might call “cheese sandwiches” if you were comfortable with extremely loose definitions of both those words. We discovered that if we threw the cheese hard enough at the walls of the cell, it could stick to the wall for several minutes. It wasn’t long after that that the officers started releasing people, and so we started making bets on which piece of cheese would fall off the wall before which arrestee was released.

When you’re arrested at a protest, one of two things will happen. Either you’ll get released with a Desk Appearance Ticket — a D.A.T. — or you’ll get booked and arraigned. If you get a Desk Appearance Ticket, you’ll be released within a few hours, but if you get booked and arraigned, you’ll be held until the next time when you can appear in front of a judge, which usually means overnight. The vast majority of people who are arrested at a protest are only charged with Disorderly Conduct, which is a violation, and they receive a Desk Appearance Ticket that isn’t much different than a speeding ticket. It’s only if your rap sheet has something more severe, like Obstruction of Governmental Activity (one of the charges against me) or Assaulting an Officer that you get booked and have to stay overnight.

Of course, I was not given any information about my charges until morning; all I knew was that everyone else was being released around me until I was completely alone in my holding cell, and nobody would tell me anything. I won’t go into the specifics, but I will say that I’m everlastingly grateful to my fellow arrestee who happened to be able to teach us biofeedback exercises, because I certainly put them to use between the hours of, I’d guess, midnight and 6 AM.

At some point during that time, my Arresting Officer came in to get me. He re-cuffed me and led me through the precinct to the booking room to get my mugshot and fingerprints taken. Between the cell and the booking room was a gauntlet of officers on break, drinking coffee, joking with each other, and shouting “Ma’am-Sir-Ma’am” at me as I shuffled by, my arms behind my back and my bootlaces confiscated, trying not to fall on my face.

Eventually, those of us who were still there by morning were cuffed to one another and brought to the front of the precinct — about five people. The woman to my right was bruised and bloody, and when the officers moved her arm to tighten the flexcuff, she screamed in pain. As they directed the line of us to exit the precinct and get into a van, she told me in a whisper that her arresting officer had fingerprinted her, but not taken a mugshot because he didn’t want to create evidence of how badly he had beaten her during her arrest. I tried to move carefully, cuffed as I was to her injured arm, but the officers hustled and hurried us along into the van, which brought us the several blocks from the precinct, One Police Plaza, to Central Booking at 100 Centre Street.

The first stop in Central Booking was a medical station. I was held in the doorway of a long room, and a medical officer shouted questions at me from behind his desk at the other end of the room. He asked if I was injured or sick, and if I took any medication, and I answered that I took weekly exogenous testosterone. He stared at me for a moment and then laughed heartily, and told me, “I’m not going to write that down, nobody’s going to know what that means.” I told him sincerely that I didn’t care what he did, and was hauled away.

At several points during my travels through Central Booking, administrative officials saw the green hat that clearly marked me as a Legal Observer and asked me or my Arresting Officer what I was doing there, for which neither of us had a good answer.

Before releasing me into the booking cell, they returned some of my possessions to me — my shoelaces, my wallet, and the fabric pouch that I keep my stand-to-pee device in — empty. I asked my Arresting Officer where it was, and he told me that he’d thrown it away. When I protested, he shrugged and said, “Look, I’ve been really nice to you so far. Don’t push it with this attitude.”

They searched me again, and the older woman patting me down stared at me before asking directly, “Are you transgender?”

Up until this point, the mocking from the individual officers notwithstanding, I’d been going through the system as if I were a cisgender woman. I had been hoping that I could keep my head down until everything was over.

Exhausted, rattled, terrified, I said, “Yes.”

She asked, “Do you have a penis?”

I pulled together what was left of my composure and answered, “You’re not allowed to ask me that.”

She explained earnestly that she had to ask, because if I had a penis, I couldn’t be placed in the women’s booking cell, and, with the last shred of my assertiveness, I told her that I knew the NYPD policy, and that wasn’t it.

She responded that if I didn’t answer the question, I’d be put by myself, which I knew meant that I’d be indefinitely cuffed to a chair, pipe, or pole without access to a bathroom or phone, so I acquiesced and was brought to the women’s holding cell, where I remained for another several hours before being arraigned around 3:00 PM on April 30th and ultimately released on my own recognizance. I exited the courtroom into the afternoon sun and found myself surrounded by the caring and comforting embrace of the Jail Support team and my partner, who had been waiting with them all day.

I returned several months later for my hearing with the friend I had texted from the van, and she skillfully got my charges thrown out “in the interests of justice.”

She showed the District Attorney the Youtube video of my arrest, which showed very clearly that every allegation in the complaint was fabricated — I was yards away from the officers I was supposed to have grabbed, and could not have grabbed them anyway, with my notebook in one hand and pen in the other.

In the time that has passed since my arrest, I talked to some lawyers whose business is suing the city over police misconduct and brutality. We had hoped that I would be able to bring a civil lawsuit about what happened, and bring some attention and publicity to the fact that they weren’t following their own policy with trans arrestees, and I was excited about the possibility of being a plaintiff who wasn’t forced by financial need to take a settlement, and who could therefore fight the case all the way to trial if necessary.

But then, partway through these conversations, a new decision came down from New York’s federal courts, Adkins v. City of New York. In Adkins, a trans guy who was arrested as part of an Occupy Wall Street action on the Brooklyn Bridge in October, 2011 was suing over how they had treated him during the course of his arrest — they had cuffed him to a wall in the precinct for seven hours, withheld food from him, and mocked and interrogated him about his genitals.

While the court in Adkins acknowledged that transgender people are a protected class under the Constitution — the first federal court to do so — it also dismissed most of his claims because he did not suffer any lasting physical injury from how he was treated, identifying the harms he suffered as “minimal.” What this means is that there is basically no indignity or violence to which the NYPD can subject an arrestee that would actually be a violation of their constitutional rights, unless it results in lasting physical injury.

When this decision came down while my lawyers and I were preparing for the first steps of the civil suit, we realized that it meant we didn’t have a prayer. Because I didn’t sustain lasting physical injury, a court would not recognize that the police officers’ violations of their own rules and policies were a problem.

As I left the attorney’s office after getting that news, the office’s receptionist sympathetically called me “miss” and directed me to the women’s bathroom, where I slid down the door until I was sitting on the floor and focused on the biofeedback exercises that my cellmate had taught me. I hadn’t cried when I was being forced to tell a police officer about what my genitals looked like and I wasn’t going to cry now, but I felt helpless now in a way that I hadn’t before, now that it had been confirmed for me that the way they treated me didn’t matter.

I want to be clear that I am insulated by whiteness and masculine identity from the explicit violence, flagrant violation, and dehumanization that the NYPD perpetrates against many trans people. The Department’s practice of unlawful arrests, sexual assault, and violation of their own policies with regards to trans women, particularly trans women of color, is both horrific and better heard in their own words. My experience of being mishoused, groped, mocked, and interrogated about my genitals was unpleasant and humiliating, but comparatively extremely mild.

That’s the reason I wanted to write this. This is the story of the experience of going through this system as a white, educated, transmasculine person — a person who has clearly and explicitly identified themselves as an attorney or legal worker — a person who could not be more positioned to receive deferential and courteous treatment. If you are reading this account and you find my experiences upsetting or alarming, please take a moment to consider how much worse the experience of a trans person without these privileges and positionalities would be.

Ultimately, what we’re talking about here is personhood. The societal refusal to afford personhood to Black people that engendered the cry of “Black Lives Matter” in response. The refusal to afford personhood to trans women that lies at the root of the rate of their murder in the United States and worldwide, with estimates ranging from one every other day to one every twenty-one hours. The way I was treated by the NYPD was because of a crack in the personhood afforded to me by my whiteness and masculinity, a crack stemming from being visibly queer and visibly trans, but only a crack. What I experienced last April was a faint, tiny, insignificant whiff of what crashes down on others’ heads with overwhelming and literally deadly weight every day.

Lourdes Ashley Hunter of the Trans Women of Color Collective famously said that “Every breath a trans person takes is an act of revolution.” I’ve been struggling to think about how that statement applies to me, a person whom nobody is actively and directly trying to kill at this moment, and I think that the answer is that every breath I take bears the responsibility for revolution. My liberation will come as a side effect of the liberation of my trans sisters, and it is towards that end that I direct my energy, my activism, and my voice.

If, reading this, you feel concern or compassion for me, or you wish that that hadn’t happened to me, then I direct and implore you to do the following:

My arresting officer said that he hoped my experience would teach me to mind my own fucking business, and I have to be honest: it hasn’t. What it’s done instead is clarify and solidify what I understand my business to be: solidarity.

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