How the NYPD Uses Facebook to Surveil, Entrap and Arrest Teenagers
In October 2012, then-New York Police Commissioner Ray Kelly announced a new initiative, called “Operation Crew Cut,” which would target gang activity by focusing on so-called street crews. Kelly doubled the size of the anti-gang unit to 300 police officers, assigned to the task of surveilling teenagers on Facebook. Many of these kids are under 18, some as young as 12, and just about all of them are black and brown, from low-income neighborhoods. The officers involved are encouraged to make fake Facebook profiles in order to spy on individuals’ Facebook statuses. The operation often entails reading private Facebook messages between friends and is sometimes coupled with phone and video surveillance. Soon press releases were coming out of the NYPD offices announcing dozens of alleged gang members had been arrested due to the Crew Cut initiative.
The operation began to draw criticism, however, as people questioned why teenagers were being arrested on obscure conspiracy charges that were meant to take down serious organized crime. One teenager, Jelani Henry, said he was held in Rikers for nearly three years simply because of his associations on Facebook and his likes and comments on various Facebook posts.
"The mix of social media and conspiracy statutes creates a dragnet that can bring almost anybody in," attorney Andrew Laufer told The Verge. "[I]t’s a complete violation of the Fourth Amendment and the worst kind of big brother law enforcement.”
On June 4, 2014, the largest NYPD raid in history occurred as a result of Operation Crew Cut. Some of the kids arrested had been surveilled as young as age 12 and four years later were (now, at age 16) charged as adults, and faced dozens of years in prison for allegedly conspiring to commit crimes on Facebook.
But it was in the aftermath of the murders of Officer Wenjian Liu and Rafael Ramos last December that the NYPD found a new purpose for Operation Crew Cut: arresting teenagers, most of them black and Latino, who wrote, shared or liked anti-cop Facebook statuses. The pretext was that the alleged killer of the officers, Ismaaiyl Brinsley, who then committed suicide, had posted his desire to "put wings on pigs" on Instagram before setting out to kill cops. Following the murders, NYPD Commissioner William Bratton promised to take social media threats against the police more seriously. New York wasn’t alone; overzealous arrests based on anti-cop social media posts were occurring across the country.
In Fort Worth, Texas, 17-year-old Montrae Toliver was arrested and charged with a terroristic threat for posting a tweet that said, “should I do it? They don’t care for a black man anyways” along with a photo that appeared to show a gun pointing at a police car. The tweet that followed noted that the gun in the photo was fake and the Associated Press also confirmed that the gun was fake.
In Massachusetts, a man was charged for writing “put wings on pigs” in a Facebook status.
In Tinton Falls, New Jersey, 29-year-old Matthew Reardon was arrested after expressing his views on Facebook: "Don't wanna get clipped while sitting in your squad car?? Don't be a [expletives deleted] pig who's looking to get killed...Everyone who goes out of their way to [expletive deleted] with other people should get executed in cold blood.”
In Pennsylvania, Steven Drake, 29, is accused of writing a Facebook status saying: "The police brought this on themselves! I say kill them all! Enough is enough.” He was charged with terroristic threats and disorderly conduct.
In Oklahoma City, 19-year-old Tavon Railback was arrested for the Facebook post: “Bust a some shots at a cop, watch his body fall.” The post was a remix of the song "Have It All" by rappers $wagg and Lil Jojo in which “opp” (short for the opposition) was changed to “cop.” Railback was charged with violating the Oklahoma Anti-Terrorism Act.
In New York, the NYPD announced that nearly 30 people were arrested for alleged “threats against police,” within a month. One of those arrests was Yasin Shearin, who turned himself in after the Brooklyn district attorney’s office put out a call for his arrest because of a Facebook status. The 16-year-old, who had no criminal record, was charged with making terroristic threats and sent to Rikers with a $200,000 bail his mother couldn’t pay. During his court date, the prosecutor, citing the criminal complaint, said Shearin’s Facebook status was found by an “officer who investigates youth crews on Facebook,” or Operation Crew Cut. Devon Coley,18, who was arrested for posting an anti-cop photo with the status “73next,” was also being surveilled through Operation Crew Cut. He was charged with making a terroristic threat by the Brooklyn district attorney’s office. Neither the county clerk’s office or the NYPD would give information on how often arrests like these occur.
For some lawyers and critics of these police practices, these social media posts are considered dissenting speech. They argue that, while some people may not agree with the statement or find it in bad taste, the speech is still protected by the first amendment. The current case law of what constitutes a “threat” includes a specific date or time in the future, as Eugene Volokh wrote in the Washington Post.
“We’re going down an interesting road here. I think the police are trying to make people worried," Moira Meltzer-Cohen, an attorney who is also a legal activist with Mutant Legal, told AlterNet. "They don’t want people saying negative things about police but the problem is these kinds of laws or the enforcement of laws in these creative ways isn’t actually going to prevent people from making real threats against police officers. The danger is it’s going to be used — and it looks like it has been already — to punish legitimate dissent that is not a threat.”
Samuel B. Cohen, a partner at Stecklow Cohen and Thompson who teaches First Amendment law, referenced People v. Stephen (1992) as a “case…[that] illustrates the tension between the concept of the First Amendment and law enforcement’s instinctive desire for respect and obedience…[it] underline[s] the purpose of the First Amendment is to protect people from being penalized for pure speech against police officers.”
People v. Stephen involved an individual being arrested for saying, “If you didn't have that gun and badge, I'd kick your ass, I'd kill you,” to a police officer. The charges against the defendant were dismissed. The decision was that while his words may have been “vulgar, derisive and provocative speech” — which is protected by the First Amendment — they could not be considered an imminent threat because it was hypothetical and that “at [its] worst, [his words] counseled unlawful conduct at some future, unspecified time.”
Thereby not making the threat imminent. Furthermore, the case outlines there should be a higher tolerance to speech directed at police since the police are expected “to be less sensitive to provocation [since] ‘[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’” Lawyers who spoke to Buzzfeed came up with the same conclusion.
Both Shearin and Coley failed to be indicted on the charges, which seemed to validate many lawyers' viewpoints that the arrests were baseless and even unconstitutional. This result makes NYPD’s actions appear even more shady: Why were they using an anti-gang surveillance operation to arrest teenagers for dissenting anti-cop speech? The NYPD declined to comment on the arrests. When asked about the ethics regarding the arrests, a spokesperson from the Brooklyn district attorney's office said only, “Our standard procedure is to evaluate each case that’s brought to us on the merits and bring the appropriate ones to the grand jury."