Alvin Bragg, the Manhattan district attorney, said he would not prosecute some instances of resisting arrest, prompting a dispute about the nature of policing.
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Jonah E. Bromwich and
When the new Manhattan district attorney, Alvin Bragg, announced a slate of new policies this month, one change that met furious pushback was the notion that the borough’s top prosecutor would no longer prosecute those who resisted arrest.
But a review of court records from recent years indicates that the type of resisting arrest cases Mr. Bragg’s prosecutors will no longer pursue are exceedingly rare in Manhattan and in New York City overall, suggesting that some of the resistance to Mr. Bragg’s agenda has little to do with his policies’ real world effects.
The offense he will no longer pursue — the stand-alone charge of resisting arrest or resisting arrest charged with other, lesser crimes — was prosecuted fewer than 76 times in 2020 under Mr. Bragg’s predecessor, Cyrus R. Vance Jr.
That represents a minuscule proportion of the tens of thousands of cases the office handled that year. In New York City, as a whole, resisting arrest was the top charge fewer than 250 times in 2020. And Mr. Bragg has said that any violence toward police officers will be charged as assault. The new policy won’t affect cases where resisting arrest is accompanied by more serious charges.
Studies have shown that, overall, resisting arrest charges are filed disproportionately against Black New Yorkers and that a small percentage of officers account for many of the cases. Frequently, defense attorneys said, it meant that their clients had been treated violently.
Still, Mr. Bragg’s decision on the resisting arrest charge and other policy changes, announced in a complex legal memo released in the first week of his administration, caused a backlash from law enforcement authorities and Republican politicians. Police officers and their representatives say that the resisting arrest charge is an important tool for them to maintain control in heated situations.
The dust-up illustrates the way that political resistance is threatening to derail Mr. Bragg’s attempts to implement a progressive approach to prosecuting low-level crime early in his tenure. And it comes as fears about crime are being stoked by recent high-profile episodes of violence, including the fatal pushing of a woman onto subway tracks on Saturday.
Some of Mr. Bragg’s changes represent significant shifts. His instruction that his prosecutors charge robberies as petit larceny, a misdemeanor, unless offenders had created “a genuine risk of physical harm,” has been a subject of fierce debate, and has been criticized by a number of former prosecutors.
But many of the policies Mr. Bragg announced appear to be more about philosophy than practice.
“I think he was using it symbolically,” Richard Aborn, president of the Citizens Crime Commission of New York City and a former Manhattan prosecutor, said of the resisting arrest policy, adding that he believed Mr. Bragg meant to signal that he was not going to give police officers “unfettered authority.” Mr. Aborn said that the policy would not have widespread impact on the way that cases were prosecuted in Manhattan.
But Paul DiGiacomo, the head of the Detectives’ Endowment Association, said the policy sent “a message to the criminal element that it’s OK to resist arrest.”
“It’s not safe or fair for the hard-working men and women working in the New York City Police Department,” he said in an interview. Last week, Mr. DiGiacomo’s union sent a letter to Gov. Kathy Hochul asking her to appoint a special prosecutor to oversee the cases Mr. Bragg planned not to prosecute.
The use of the resisting arrest charge has come under scrutiny in New York and across the country. Some policing experts consider it to be a strong indication of excessive force, as it can protect officers from legal blowback in cases where they may have abused people in their custody.
“When Vance’s office was charging resisting, I knew without a doubt I would walk in the back and see my client beaten up, bloody and bruised,” said Eliza Orlins, a public defender who ran against Mr. Bragg in the district attorney’s race.
And when resisting arrest appears as a stand-alone charge, it confounds logical explanation: How could a person have resisted arrest if they were not being arrested for some other crime in the first place?
Though it is not often the most significant charge brought — as it would be in the cases affected by Mr. Bragg’s order — the New York Police Department made more than 10,000 arrests that included a resisting charge in some recent years.
About 240 cases in Manhattan reached conclusions with resisting arrest as the top remaining charge in 2020, data from the state’s Division of Criminal Justice Services shows, compared to 643 cases four years earlier. Many of those defendants likely faced more serious charges initially, and Mr. Bragg has not planned to stop prosecuting those cases.
Mr. Bragg’s memo touched off a battle in Manhattan that has already played out in cities around the country. Prosecutors who have taken a more lenient approach with defendants have been vocally opposed by victim’s rights advocates and traditional law enforcement organizations.
The prosecutors’ opponents often argue that they have made cities less safe and encouraged criminals, though data does not appear to support such an argument. As gun crime and some other offenses have risen sharply in many cities over the last two years, including those led by more traditional prosecutors, the policy arguments have become explosive.
Jennifer Harrison, the founder of Victims Rights N.Y., a victims’ advocacy group, said that she was concerned that Mr. Bragg’s policies could encourage crime, and that his instruction to ask prosecutors not to request a prison sentence of 20 years for any crime absent “exceptional circumstances” was disrespectful to victims.
“I don’t think there should be an announcement of leniency on severely violent crimes,” she said.
Supporters of such prosecutors say that the backlash comes from those who are invested in and benefit from an unjust system.
“The police don’t like changes that reduce their power,” said Rachel E. Barkow, a professor at the New York University School of Law who was on Mr. Bragg’s transition team. “And when they don’t like it, they go running to the press and say things like ‘insert new law here’ is why we have crime.”
Rachael Rollins, the former district attorney in Suffolk County, Mass., adopted a similar approach to Mr. Bragg in 2019, when she declined to prosecute 15 low-level crimes, including in resisting arrest policies identical to those in Manhattan. Police unions in Boston criticized the move as ignoring state laws, and said officers would encounter more aggressive pushback on patrols.
But a recent study showed that Ms. Rollins’s misdemeanor policies helped boost safety. Those who were not prosecuted for nonviolent misdemeanors in the county were significantly less likely to be rearrested than those who were, researchers found. Ms. Rollins is now the U.S. attorney in Massachusetts.
During his campaign, Mr. Bragg explained the resisting arrest policy in depth on his website, saying that he had friends and family who could have faced the charge after officers made situations more tense.
“By refusing to prosecute these arrests, I hope the N.Y.P.D. will stop making them, and escalating situations in the first place,” he wrote. “Of course, it should go without saying that any person who assaults and causes legitimate injuries to an officer in the course of resisting arrest — whether for a violation or any other offense — will be subject to prosecution.”
But that detail was stripped out of the policy memo he released to assistants and to the public, and misunderstanding spread rapidly, causing political problems for Mr. Bragg in his first weeks on the job.
Phillip Atiba Goff, the founder of the nonprofit Center for Policing Equity, said that while the charge of resisting arrest had been under discussion for some time by prosecutors who share Mr. Bragg’s philosophy, the explicit instruction he gave to his staff not to prosecute it was noteworthy. Mr. Goff was unsure what the political consequences for Mr. Bragg — and for prosecutors who share his vision — might be.
“I worry that doing it that way may produce a kind of backlash that cements worse policies, not just in New York, but across the board,” he said. “I also worry that if you don’t do it that way, you don’t get anything done.”