Earlier this month, in an act of courage and grace, the NYPD announced they’d stop arresting people who asked strangers for subway rides. The department has decided they’d no longer arrest people who can’t afford the $2.75 to go somewhere and the $2.75 to get home. Which is more people than you’d think: The majority of arrests in New York City stem from farebeating. It’s a huge deal! Or, it should be. The NYPD is giving up one of their greatest sources of inflicting emotional, physical, and financial pain on poor New Yorkers, sure, but they’re not really conceding anything substantial: They should never have been arresting those people in the first place. It’s legal to ask for a subway swipe. And the NYPD has known that for a long time, even as they target the people soliciting swipes—the ones who can’t afford to pay for the subway—and not the people giving them out.
Four years ago, a federal judge approved a massive settlement that definitively stated that these types of arrests are unconstitutional because they violate a person’s first amendment right. Yes, you have a right to ask for that Metrocard swipe, no matter how badly the NYPD wants to penalize poverty. And yet they kept arresting people anyway. It’s important to understand that asking someone for a Metrocard swipe is not something anyone does happily or without knowing the risk they run if they’re caught by the police. They do it because they need to get somewhere and don’t want to shortchange other taxpayers while they’re at it.
When asked for comment, the NYPD told me that asking for a Metrocard swipe is still a violation, and that a person is subject to arrest if an officer feels compelled to make one. However, when pressed to locate the exact administrative code or law that is not subject to the 2012 settlement, the NYPD produced transit rules that ban the same type of panhandling or loitering that was struck down by the settlement. This isn’t surprising. Often, litigators have to strike down law after law that ban panhandling and loitering, which means it sometimes takes decades to force police departments to comply with the constitution.
The NYPD has long used any marker of poverty for grounds to make an arrest. From sleeping on the street or subway to selling loose cigarettes, they have employed the “broken windows” method of policing to crack down on anyone who has even the appearance of unlawfulness. Instead of arresting indigent people, the NYPD has begun issuing summonses—which means the case is handled in the civil system. And unlike an arrest, with a summons you don’t have the right to a lawyer. The police use this system to seize property and money from the poor. The New York Daily News and ProPublica’s recent coverage of the NYPD’s abuse of nuisance abatement laws to kick out homeowners from their homes show the lengths the NYPD is willing to go to make sure that the poor of New York can’t even challenge the NYPD’s assertion of power.
“In the face of the court’s finding these kind of tactics unconstitutional, the NYPD continues to apply them, and it’s just one more way that the city criminalizes poverty, and one more way the NYPD thwarts the laws on the books and violates people’s rights,” said Robert Gangi, Director of the Police Reform Organizing Project, an organization that “works to expose and correct abusive police tactics that routinely and disproportionately do harm to our city’s low-income communities and people of color,” according to its website. Last year, they witnessed hundreds of arraignments for fare evasion. “They’re inflicting pain and hardship not on people who can effectively push back and embarrass them, instead they’re inflicting pain on low-income people without means to effectively protect themselves,” Gangi continued.
The 2012 settlement came after more than 30 years of legal battles; until that decision, New York City government and its police department refused to listen to federal judges who declared its ban on panhandling and loitering unconstitutional. The city was even held in contempt for continuing the practice and fined $500 for every illegal summons, with the fine steadily increasing $500 every three months after that. The class action settlement, which merged several ongoing lawsuits against the city, was supposed to bring an end to these types of arrests for loitering and panhandling. By the time William Bratton was named police commissioner in 2014, however, arrests in the subways began to climb. Within a few months of Bratton assuming office, arrests for panhandling in the subway were up 271 percent. The NYPD apparently agreed to ignore the 2012 settlement; they doubled down on arresting farebeaters. After all, Bratton was the man who pioneered “broken windows” policing—the controversial, racist policy that kicked off the NYPD’s focus on quality-of-life policing in the first place.
Several news outlets have seized on the change of policy without realizing the lengths the NYPD—and to a large extent, police departments throughout the country—have gone to defy repeated court rulings that make it clear that there’s no begging exception to the first amendment. A 2015 Supreme Court ruling found that any efforts to curb panhandling based on speech were unconstitutional. Cities like Worcester, Massachusetts are fighting to keep the panhandling laws on the books, while others, like Denver, have changed their laws to conform to the first amendment. What really differentiates people asking for swipes from subway dancers (whom the NYPD are now, hilariously, charging with reckless endangerment) or even Jehovah’s Witnesses handing out pamphlets, are that swipe solicitors are often low-income people who simply can’t afford the subway but need to get places. They’re neither looking to make a buck nor convert anyone.
Adding to the problem are years of infrastructure austerity, which has led metropolitan transportation networks to accrue debt to pay for necessary repairs. As a result, transit authorities raise fares even as wages nationwide stagnate or decline. If you criminalize poverty, it’s not hard to see how you end up with people being arrested for asking for a subway swipe—an arrest deepens the cycle of poverty by making them miss work, a job interview, or picking their kid up from school. An arrest doesn’t stop fare evasion. In the meantime, entire networks, like BART in the Bay Area or the Metro in D.C., are either crippled by overuse and wear or are falling entirely due to years of financial neglect.
Riders have been asked to bear a larger share of the funding for systems, and low-income riders in New York have been arrested for years because of it. For the NYPD to pretend that no longer arresting people for fare evasion is some sort of benevolent or enlightened act is a slap in the face to the people whose lives have been ruined for the crime of being poor.