News & Politics

This NY Bill Could Effectively Make You a Felon If You're Arrested During a Protest

A subtle change in New York State law could stop #BlackLivesMatter in its tracks.

On Sunday, The New York Postand NY1 reported that the NYPD’s push to make resisting arrest a felony had officially been introduced as a bill before the New York State senate. After both Commissioner Brattonand NYPDpolice union simultaneously trial-ballooned a similar law change a few weeks ago, the plan to make “aggravated” resisting arrest a felony is officially moving forward after State Senator Tony Avella proposed Bill S04260, that would render anyone who “resisted arrest” more than twice in a ten year span a felon. As the Post spelled out:

Resisting arrest will lead to harsher penalties under legislation proposed by a Queens Democrat. State Sen. Tony Avella is behind a bill that would create a felony charge — “aggravated resisting arrest” — for people who have been convicted of resisting arrest twice in a 10-year period.

The justification for the new measures, in typical NYPD victim-blaming spin, is being presented a  a way of preventing future Eric Garners:

The legislation is in response to protests last December following a Staten Island grand jury decision not to charge a police officer in the chokehold death of Eric Garner.

The bill is based off a letter the Lieutenants Benevolent Association sent to Police Commissioner Bill Bratton in January requesting an “aggravated resisting” charge.

“This helps everybody,” LBA President Louis Turco told The Post. “Civilians don’t get hurt and officers don’t get hurt.”

Setting aside the now all-too-routine fact that police policy is largely directed by the unelected NYPD brass and then later driven through by compliant state legislators, such a policy would have deeply troubling implications. First off, making resisting arrest a felony would severely and disportionately affect communities of color. As WYNC reported last December, resisting arrest - like all facets of our justice system - is not applied evenly among class and race:

NYPD officers appear to be far more likely to file resisting arrest charges against black suspects than white suspects — with dramatic differences in some parts of the city, according to a WNYC Data News analysis of court records.

Law enforcement experts say resisting arrest charges are a strong indicator that an arrest went bad and a cop had to use force. So, with the death of Eric Garner over the summer during an arrest for selling loose cigarettes, WNYC's Data News team analyzed court records to look at who gets charged with resisting arrest.

And considering dozens of states disenfranchise convicted felons, the NYPD's plan would, by accident or design, invariably prevent thousands of people of color from voting in other states throughout the union. Secondly, making 'resisting arrest' a felony would severely dissuade people, in the aggregate, from protesting. Because protesters are routinely arrested for resisting arrest - both in concert with other petty offenses or as a sole offense - this would radically alter the cost-benefit of direct action. Indeed, as NPR reported in January, getting arrested solely for resisting arrest is an all too common occurrence police do to "save face":

Carter, the former officer, agrees that police sometimes feel they have to arrest someone to "save face." But he says some unjustified arrests also come out of officer fatigue — a breakdown of what he calls "resiliency" toward challenging members of the public, especially in protest situations.

Throw in the several other stigmas attached to felony arrests - from jobs, to credit, to starting a small business - the pain of a felony conviction would, by definition, prevent thousands of people from even coming close to a demonstration.

And since making 'resisting arrest' a felony would disproportionately affect both people of color and activists, one can only imagine - and this is no doubt the real objective - the effect it would have on activists of color. Six months after the murder of Mike Brown ignited a nationwide movement and 3 months after the non-indictment of Eric Garner's killer fanned its flames ten-fold, the NYPD, still scrambling to lay the groundwork in the inevitable event another such injustice occurs, is trying to radically alter the equation of civil disobedience in their favor. Those with the means to do so shouldn’t let them.

Editor's note: This article originally stated that NPR reported a story last week when in fact it was in January of this year. The article has been updated to reflect this. 

Adam Johnson is a contributing analyst at FAIR and contributing writer for AlterNet. Follow him on Twitter @AdamJohnsonNYC.

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